Meaning of Probate:
Probate is the term for the legal process in which a will is reviewed to determine its validity and authenticity. It also accounts for general administering of a deceased person’s will or the estate of a deceased person without a will. This involves organising their money, assets and possessions and distributing them as per the inheritancelaws. Therefore, a will gets certified through a probate, under the seal of a court.
Necessity of probate:
It is wise to seek probate of will as it has an effect over all the property and estate of the deceased, whether moveable or immoveable, throughout the State in which the same is granted. It is a conclusive proof that the will was executed validly and is genuine and is the last will of the deceased. There is no restriction under law to get a probate of a will, but it is mandatory in certain cases as mentioned below.
Legal Basis:
As per section 213 of the Indian Succession Act, 1925 a probate of will is compulsorily required, only if the will is made in any one of the below-mentioned two cases, otherwise, it is not compulsorily to probate the will:
(i) Made by Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay or;
(ii) Made the will outside those territories and limits, so far as relates to immovable property situate within those territories or limits.
Process to get a will probated:
The application for a probate, can only be made by the executor/s named in the will. An executor of an estate is an individual appointed to administer the last will and testament of a deceased person. The executor must make an application for grant of a probate under the seal of the court, certifying the will. In case of more than one executor, the probate can be granted to them together or as and when the application for probate is made.
In case no executor is appointed under the will, only a simple letter of administration is issued by the court granting the same administrative rights to the beneficiaries that an executor would have enjoyed.
The executor must make an application to the court, attach the original will with the application for the grant of probate. In the application, the executor must mention the names and addresses of the legal heirs of the deceased, so that notice can be issued to them before the will is probated. Court generally requires the petitioners to establish the facts of death of the testator (the one who has made the will) with proof, which isdone with the help of a death certificate issued by the central and zonal offices of the local authorities.
The executors are also required to establish that the will produced before the court is the last will of the deceased and also required to establish that the submitted will was validly executed by the testator. This can be done by clearly specifying one’s personal details, family details, property details, bequeath details and details of both witnesses. One must make sure that his/her will is created when one is mentally sound, without any fear, force, coercion, or undue influence.
Conclusion:
Seeking a probate is a time-consuming task which may take up to six months or a year. The testator must spend his time and money on court proceedings and related fees depending upon the value of underlying assets. At the same time, a will can also be challenged by any of the legal heirs contesting its validity and authenticity. Hence, obtaining a probate is a longer route.
One can thus explore other estate planning tools such as setting up of various kinds of trusts and structures to regulate the rights and obligations of beneficiaries, to skip the abovementioned lengthy legal process.
Key words: Will, executor, probate.
The content of this article is intended to provide general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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