What is Probate & Is A Probate Mandatory To Transfer Property?

The word probate is derived from the Latin phrase ‘probare’, which means to have proven. Probate is a certified copy of the Will which is the official proof. The executor issues it with a seal of the court that authorises him to execute or implement the bill. Will Probate adds a legal character to the will. In other words, will probate is a legal process which facilitates the deceased person to distribute his estate properly amongst his heirs and designated beneficiaries. It also provides for paying off the debt owed to the creditors.

Probate can be applied for after 7 days of the death of the testator. The entire process of Probate of Will takes at least six to nine months to complete. However, if there is any objection to the public regarding the Will, then the Probate of Will process can even take up to 2 years to get completed, depending upon the seriousness of the objection.

What is Probate of a Will?

The word ‘Probate’ means to prove or validate something. It is a procedure for court approval of the Will as the valid and last Will of the deceased testator. According to 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.” It means that when a Will is probated, it gets officially certified with a seal of the court and provides the authority to the executor to appropriately distribute the assets of deceased testator and also to pay off bills and creditors from that estate.

The Requirement of Probate if there is a Will?

No, it is not mandatory to probate a will as there are various circumstances which make the probate of will in a certain case unnecessary but rules can vary from state to state. When the assets are owned by people in joint names with their children, spouses or other person, then it passes automatically by the operation of law to the surviving owners and there is no requirement of probate of Will in distributing the property.

However one requires a probate when the existing Will has a problem. Or, the testator predeceases the beneficiaries named in the probate. Or, the Will has no beneficiary named in it or when the deceased testator solely owns an estate.

What is the Procedure for Will Probate?

The procedure for probating of will is divided into four simple stages:

  • The first step involves making of application to the District Judge through a probate petition which must be duly signed and verified by or on behalf of the applicant. The probate petition should be in a prescribed format under Code of Civil Procedure, 1908 and it shall be done after 7 days of testator’s death.
  • The second step is to send the application to the High Court, under whose jurisdiction property falls. Then a lawyer shall prepare the application, in some cases lower court can also accept the application.
  • One needs to submit certain documents that can verify the genuineness of the will, death certificate and other documents. These will prove that the testator had free will.
  • When the court receives the application, it verifies all the details. Then it invites the nearest kin of the deceased for claiming the probate. Finally, it showcases the invitation letter at prominent places for invitation of any objection. If after 30 days, the court files no objection, the issuance of the probate is complete.

     

Is a probate compulsorily required?

No, not all Wills require a probate to be obtained. However, obtaining a probate has distinct advantages besides being a legal necessity in some cases. For example, in cases of dispute between siblings, the authenticity of the Will may be questioned by one of the siblings at a later stage by producing an alternate, Will. A probate puts an end to this by ruling on the fundamental validity of the Will. The following are the circumstances where a Will needs to be probated by the court-

  • Wills that are made in the areas of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.
  • Wills that are made outside these territories but where the property is situated in these territories also require a probate.
  • The Indian Succession Act also mentions that a probate is only required for Wills made by Hindu Buddhist, Sikh or Jains. Thus, no probate is required for Wills made by Muslims.

What happens when the probate is not obtained?

A Will that requires to be probated loses its legal enforceability if it is not probated by a court of competent jurisdiction. Thus, in such a scenario, the successors stand to lose their claim over the inherited property and the executors of the Will do no possess the power to take any action towards claiming ownership.

Documents Required and Fees Payable:

Since every state where probate is required has its own Court Fee and Suits Valuation Act, the exact fee will be determined by the state, but the fee is calculated as a percentage of the value of assets. Some of the documents required include –

  • Original Will of the deceased
  • Death Certificate
  • Title Deeds pertaining to the immovable property mentioned in the Will
  • Documents pertaining to the movables mentioned in the Will

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