Understanding Probate: A Complete Guide to Will Execution and Legal Processes

Will is a legal document that specifies the person’s intention and wishes, which needs to be performed after his/her death. The maker of the will is known as the testator/testatrix, and it can be revoked only during his/her lifetime whereas a Probate is defined under the Indian Succession Act, 1925 as – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.

The person who makes a will expresses his wishes to be executed after his death by certain persons named in the will. The persons named in the will to execute it are called its executors. Probate can be granted only to the executor of the will. It is necessary if the will is for immovable assets in multiple states. Probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will.

Under the Indian Succession Act 1925, probate is mandatory when all the below conditions are fulfilled-

• A Will within the geographical limits of the state of West Bengal and municipal limits of the metro cities of Chennai and Mumbai.
• The Will is made by a Hindu, Jain, Sikh or Buddhist residing in the state of West Bengal, Chennai or Mumbai.
• The Will deals with movable and/or immovable property situated in the state of West Bengal, Chennai or Mumbai.

Although the probate of the will is not mandatory in all other cases, it is advisable to obtain probate in cases where there is a probability of the validity of the will being challenged on any grounds in the future.

How to apply for probate of a will?

The following is the process for obtaining the probate of a will-

1. The executor of the will is required to file a petition and the original will to the court for grant of probate.
2. In the petition, the executor (who will be the petitioner in the case) has to mention the names and addresses of the deceased’s legal heirs so that notice can be issued to them.
3. The executor will have to pay the applicable court fees depending upon the value of the assets.
4. The petition must be filed before a competent court. The pecuniary jurisdiction (Jurisdiction of the court depends on the petition’s monetary value) may require a higher court to issue probate for high-value immovable assets through an advocate.
5. The next step is that the court asks the petitioner to establish the testator’s proof of death, proof that the testator’s will has been validly executed and confirm that this is the last will of the deceased.
6. Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public.
7. If there are no objections, then the court grants the probate.
8. If there are objections, then the probate petition becomes the original suit, and the parties will have to lead evidence and argue the matter. The court will pass judgment in the probate suit based on the evidence and arguments.
9. The cost of obtaining probate varies from state to state as the District Court grants it. The fees depend on the value of the assets, which are the subject matter of the petition. In addition to court fees, the petitioner also has to bear the lawyer’s fees. These costs will be borne out of the estate of the deceased.

Why is the probate of a will necessary?

Probate is necessary when an estate’s assets are solely in the name of the deceased person. Probate of a will is necessary to transfer the estate’s property into the name of the beneficiaries.

Which is the competent court to file for the probate of will?

The executor of the will can file for the probate of the will in the state in which the deceased person was living at the time of death. Thus, the competent court to file probate proceedings is the district court of the city/town where the deceased lived at the time of death.

What assets are subject to probate?

Probate assets are any assets that are owned solely by the deceased person. It can include real property whose title is solely in the name of the deceased person or held as a tenant in common. Personal properties such as furniture, jewellery, and automobiles can be included too.

Can a will be probated before death in India?

A will cannot be probated before the death of the person making the will. The executor of the will should file for probate only upon the death of the testator (maker) of the will.

Who is an executor of a will?

An executor is a person who is responsible for the execution of the will, i.e. for distributing the asset of the deceased person as per his/her wishes. It is not mandatory to name an executor in the will. However, to ensure that the will is executed as per the deceased person’s wishes and interpreted correctly, it is advisable to name an executor.

Who can apply for probate when there is no executor mentioned in a will?

When the testator does not appoint or mention an executor in a will, the legal heirs of the testator can appoint a person as the administrator of a will. The administrator will have all the rights of the executor to dispose of the property mentioned in the will. When the legal heirs are not able to decide on a person to appoint as an administrator, any one of the legal heirs of the testator can apply to the court for appointing a person as an administrator of the will.