A will is a document that is drawn by a person with clear instructions as to how their assets are to be distributed on their death. In certain situations, the executor of the will may need to apply for a probate in order to legalise it..
What is a Probate?
The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’.
Probates are issued to the executors of the will, to authorize them with a seal of approval from the court. In case there are no executors of the will, only a simple letter of administration is issued by the court, and not a probate.
When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will.
Importance of a Probate
Now, it is established that a probate legalises a will or the executor of the will to transfer the properties in the names of individuals to whom the property is bequeathed.
However, there are reasons as to why a probate might become crucial. Let’s say a property, within a society, is bequeathed to an individual and he or she wants to occupy it. Since, as per the society register, the owner is the person who has died and left the Will, unless the executor shows a probate stating their authority to transfer the said property, the society might not agree to the transfer.
A probate is completely different from the Succession Certificate, which is allotted when there is no will.
Application for Probate
A probate is issued with reference to Section 57 and Section 213 of the Indian Succession Act. The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached.
Grant of Probate
Once the application is submitted, it will be verified by the authorities and letters (notifications) will be sent out to the nearest kin of the deceased, intimating them of the issue of probate. A general notice is published for the public to view, and giving an opportunity for raising any objections to the grant of probate.
The probate is issued if no objections are received from any kin or any general public, and is done after the court fees are paid. The court fees depend upon the value of the immovable assets.
A probate, though it takes time to obtain and may cost you a tiny percentage of the inheritance (court fees + the lawyer’s fees), is essential, if there are multiple assets to handle, and those immovable properties are present in various states. Also, a probate is a completely fool-proof way of the handling such a matter and is imperative when high-value properties are being dealt with.
Probate of Will becomes an absolute necessity when the executor wants to alienate or sell off the immovable properties of the deceased person.
We have helped many of our clients get their probate in a hassle free manner. Contact Us.
