Assets belongs to a deceased person can be distributed through two mediums. First is according to the WILL, if any and the other is as per law when deceased person did not provided any document to express his/her intentions. A WILL is a document which depicts the clear idea of intentions of the person to dissolve his/her property after death. The Probate is a certified copy of the WILL which is issued filed by the executor with the seal of court which authorizes to implement the will. WILL probate give legal colour to the WILL.
It is an official document and issued for the purpose of succession. In simplest terms, it can be said that WILL probate is a legal process which facilitates the executor to dissolve the properties of the deceased testator without any hassles.
What does mean by Probate?
Literal meaning of the probate is to prove or validate something. It is a process where court approves the WILL as valid. As per Section 2 of the Indian Succession Act, 1925, “Probate of will, when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.” The person so named to execute the Will is called executor. Once the WILL got the authenticity from the court then it results into certified copy with seal of the court called probate of WILL. The executor got authority to distribute the assets of deceased testator and also to pay off bills and creditors from the estate.
Who can apply for Probate?
Executor named in the WILL can file application for probate. There may be one or many executors in the WILL. In case there are more than executors then probate can be granted to them together when the application for probate is made. Executor need to file an application for grant of a probate under the seal of the court. If there is no executor appointed under the WILL, then court will only issue a simple letter of administration. Probate WILL not be issued in such case.
Procedure for filing a Probate of WILL:-
The process for filing a probate is specified below:-
- The first task is to file application by way of probate petition in prescribed format after 7 days of death of testator. The same must be duly signed and verified by the applicant.
- In application executor has to mention names and addresses of the legal heirs of the testator so that notice can be issued to them.
- Submission of documents supporting claim that testator had free will and genuineness of the WILL like death certificate and other documents.
- On receipt of application court will verify all the documents and call nearest family members of the deceased for claiming probate. And lastly, court will display the notice related to probate of WILL at prominent places for objection.
- In case of objections received by the court then the application will turn into a suit.
- If there is no objection after expiry of 30 days then court will issue probate of Will.
What documents are required?
The following documents are necessary for process of probate:-
- Documents’ supporting that WILL is genuine and testator had free will like original WILL of the deceased.
- The proof of the death of the testator i.e. death certificate.
- Title deeds pertaining to the property mentioned in the WILL.
Which court grants Probate?
The High Court and lower court both are empowered to issue probate. The High Court exercises its probate jurisdiction in case of high value immovable assets. On the flip side, lower court can exercises its powers in a WILL relating to immovable properties of small value.
How much time the process takes?
The probate can be applied after the expiry of 7 days from the death of the testator. The whole process for the probate can be ended within 6 to 9 months. Howbeit, in case of any objection regarding the WILL then it can take long time such as 2 years to complete. The time period for process vary from case to case.
Is Probate mandatory?
No, it is not mandatory always as there are plethora of circumstances which make the probate of Will of zero value. The requirement of probate of WILL depends on State to State. As per the provisions of Succession Act, probate is mandatory for the WILLS made in the jurisdiction of State of West Bengal and metro cities Chennai and Mumbai. There is no restriction of law to get a probate of WILL when it is not mandatory. Howbeit, it is always recommended to file probate of WILL if there are chances of challenging the validity of the WILL in future.
All in all, it would be appropriate to say that probate is nothing just a decree granted by competent court of jurisdiction to declare the correctness and genuineness of the WILL of the deceased person.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
