Probate
In its judgment dated 19 May 2020, the Supreme Court reiterated the legal principles pertaining to probate and cases involving questionable execution of a Will. The Court emphasized that when multiple suspicious circumstances surround the execution of a will, the cumulative impact of those circumstances may be sufficient to deny the grant of Probate.
A will is a formal written instrument through which an individual designates the distribution of their assets upon their demise. In certain jurisdictions, such as Mumbai, Kolkata, and Chennai, the executor of the will may be obligated to initiate a probate petition to validate its authenticity.
What Is Probate -
will execution
As per the provisions of the Indian Succession Act, 1925, a probate serves as the authoritative confirmation of a will’s validity. The probate is granted to the appointed executor or the authorized individual responsible for executing the will. Essentially, it is the probate that imparts legal validity and recognition to a will.
As per the definition provided in the Indian Succession Act, 1925, a probate is characterized as-
“It is a certified copy of a will, bearing the seal of a court possessing appropriate jurisdiction, accompanied by the grant of administration of the testator’s estate.”
Probates are granted to the designated executors of a will, empowering them with the legal authority to carry out its provisions, as attested by the court’s official seal. In cases where no executors are specifically named in the will, the court may issue a letter of administration instead of a probate, providing basic authorization for the administration of the estate.
Upon filing an application for probate and subsequent verification of the will, the court assumes custody of the original document while furnishing the executor with a certificate that affirms its authenticity (known as the probate) along with a copy of the will.
Upon filing an application for probate and subsequent verification of the will, the court assumes custody of the original document while furnishing the executor with a certificate that affirms its authenticity (known as the probate) along with a copy of the will.
Why Probate is Important –
Having established the significance of obtaining a probate for a will in India or for the executor to transfer properties to the intended beneficiaries, it is essential to understand the reasons why acquiring a probate can be crucial.
Consider a scenario where an individual has been bequeathed a property within a society and intends to take possession of it. Since the deceased person remains the recorded owner as per the society’s records, the transfer of property may be declined unless the executor presents a probate that grants permission for the transfer.
Furthermore, a probate is also issued for a will or any attached codicil by individuals belonging to the Indian Hindu, Parsi, Buddhist, Sikh, or Jain faith, primarily in the cities of Chennai, Kolkata, and Mumbai.
Even in cases where a will is made outside these jurisdictions but encompasses assets situated within them, a probate is still required. This highlights the necessity of obtaining a probate in such circumstances.
Process of Probate -
The grant of a probate is governed by Sections 57 and 213 of the Indian Succession Act. The High Court has the authority to issue probates to the appointed executor or executors, along with an attached copy of the will.
Following the expiration of seven days from the Testator’s demise, an individual, or the person who created the will and is the owner of the property to be distributed, may apply for probate.
To initiate the application for probate, one must submit it to the relevant High Court within whose jurisdiction the property falls. It is advisable to seek the guidance and assistance of a lawyer or advocate during this process.
To initiate the application for probate, one must submit it to the relevant High Court within whose jurisdiction the property falls. It is advisable to seek the guidance and assistance of a lawyer or advocate during this process.
“While a lower court may be authorized to grant a probate for low-value immovable assets, it is imperative to obtain a probate from a higher court when dealing with high-value immovable assets.”
CMS team of professionals help Shareholders to get Probate -
- Establish communication with Societies/RTAs to ascertain whether a Probate is required or if the Will alone would suffice.
- The appointed solicitor will diligently submit the application, accompanied by a copy of the will and death certificate, to the High Court that holds jurisdiction over the deceased person’s domicile.
- The Court of Auditors also undertakes the publication of a general notice to identify any potential objections.
- In the absence of objections, a proclamation is issued.
- The application and accompanying documents undergo thorough scrutiny by the authorities, ensuring that all immediate relatives of the deceased are duly notified about the application.
- A predetermined percentage of the estate’s value is collected by the court and the attorney as a court fee and attorney’s fee, respectively.
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