A will is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate of will is, when one is needed in India, what the court fees are, and how it can be obtained.
Probate of Will
Probate of will under The Indian Succession Act, 1925 means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.
Probates are issued to the executors of the will, to authorize them with a seal of approval from the court. If there are no executors of will, only simple letter of administration issued by the court, and not a probate.
When a probate of will applied for, and the will is proved, the original copy is retained by the court. The original copy provides the executor with a certificate proving that the probate is genuine.
Importance of a Probate
Now, it is established that a probate legalizes a will or the executor of the will to transfer the properties in the names of individuals to whom the property is bequeathed.
However, there are reasons as to why a probate might become crucial. Let’s say a property, within a society, is bequeathed to an individual and he or she wants to occupy it. Since, as per the society register, the owner is the person who has died and left the Will. The executor then shows a probate stating their authority to transfer the said property. The society might not agree to the transfer.
Probate is issued for a will or any codicil attached, by persons of Indian Hindu, Parsis, Buddhists, Sikhs or Jains, primarily in the cities of Chennai, Kolkata and Mumbai.
In case the will made outside these territories, but for assets situated inside, it would still require a Probate.
A probate is completely different from the Letter of Administration. Probate then allotted when will does not name an executor or a will does not made by the deceased person.
Application of Probate of will
The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached.
One can apply for a probate after seven days of the death of the Testator. (or the person who makes the will and also the owner of the property to be distributed).
The application for probate, need to make with the help of a lawyer or an advocate, to the High Court, under whose jurisdiction the property might fall. Although a lower court may empowered to supply a probate for immovable properties of a small value, a probate from a higher court thus required for high-value immovable assets.
Documents Required for Probate
While submitting a probate application, Certain documents are thus needed to submit which proves that:
a. The will genuine and the last will made by the testator.
b. The proof of death of the testator.
c. That the will validly executed in clear conscience of the testator.
Grant of Probate
Once the application is submitted, it will be verified by the authorities and letters (notifications) sent out to the nearest kin of the deceased, intimating them of the issue of probate. A general notice is published for the public to view, and giving an opportunity for raising any objections to the grant of probate.
Probate of will issued if no objections are received from any kin or any general public, and done after the court fees are paid. The court fees depend upon the value of the immovable assets.
A probate, though it takes time to obtain and may cost a tiny percentage of the inheritance (court fees + the lawyer’s fees), is essential, if there are multiple assets to handle, and those immovable properties are present in various states. Also, a probate, a completely fool-proof way of the handling such a matter and imperative when high-value properties are being dealt with.
After receiving the petition for a probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate. It also directs the publication of a citation on board to notify the general public.
Common Reasons Probate Is Necessary
If there was no will, probate is necessary
If there was no will, probate is necessary. Probate helps to determine the beneficiaries and to distribute the decedent’s assets and title to property.
A valid will exists.
In order for the assets of an estate (excluding some smaller estates) to properly distributed to the named beneficiaries. A valid will must go through probate.
Probate of will necessary when there are problems with an existing will.
Some of these issues may include: the submitted will not the final version to considered; there are mistakes in the will or it was fraudulently executed; the will then drafted at a time when the decedent was not of sound mind; or any other challenges to the integrity of the will.
In some cases, an institution or bank may waive the requirement that an estate be probated before money in an account is released if the beneficiary is the principal heir-at-law (person legally entitled to the real property of the deceased), all other possible heirs-at-law will have signed waivers and authorizations to pay the money to the beneficiary, and have agreed to repay the bank should any claims be made. But that’s the exception rather than the rule for nationally-operating institutions.
Probate of will required when an estate’s assets are solely in the deceased’s name.
In most cases, if the deceased owned property that had no other names attached, an estate must go through probate in order to transfer the property into the name(s) of any beneficiaries.
When there are no beneficiaries named or they have predeceased the decedent, probate is necessary.
This situation applies to any retirement or savings accounts such as IRA or life insurance policies that would pay out to beneficiaries. If beneficiaries are not named or are all predeceased, the accounts will need to probated in order to transfer funds or titles into beneficiaries names.
Probate of will is required when a decedent owned property in joint tenancy (also known as a Tenant-in-Common).
In the case that a decedent owned property with others, probate must used to remove the decedent’s name and transfer his or her share of the property into the names of the appropriate beneficiaries.
The probate process clarifies a will and protects an estate from challenges to the specified beneficiaries of inheritance. Although using probate for a will is an effective, and sometimes necessary process. Some matters of a will can handled without involving a probate court. The strategies available depend on the nature and shared ownership of the property in the estate.
The court may impose a percentage of assets as a fee to issue a probate. In Maharashtra, for example, 4% for assets between Rupees 50,000-2 lakh, and 7.5% for assets over Rupees 2 lakh. There is a ceiling of Rupees 75,000.
In addition to the court fee, the lawyer’s fee also needs to taken into account.
Under the Indian Succession Act, a probate of will can then granted only to the executor appointed under a will. If the executor not available to administer the estate, an application must made. The application made for appointing the same by the court before applying for probate. A probate of will is a must when the will is for immovable assets in Mumbai, Kolkata or Chennai.