This article has been written by Ms. Poorva Nirmal, a 2nd year student of Vivekananda Institute   of Professional Studies, New Delhi. 

ABSTRACT

The essay focusses on probate procedure of a will. From briefing of its historical context, running through the essentials of a valid will, legal frameworks, detailed procedure of it, executor and its responsibilities to dispute resolution highlighting what disputes arise in the process and how courts or mediation tackles it followed by a case study for the better understanding of the subject. 

 

INTRODUCTION

Senior Civil Judges Have No Probate Jurisdiction; Only District Judges Can Probate Wills : Karnataka High Court Clarifies

Probate Shall Be Granted Only To An Executor Appointed By The Will: Gujarat High Court

 Article 137 Limitation Act Applies To Proceedings For Cancellation Of Probate/Letter Of Administration : SC 

these are a few significant rulings from Indian courts concerning the will probate process. the procedure necessary to verify and manage the estate distribution of a deceased individual in accordance with their final will and testament. In order to ensure that assets are properly transferred to the beneficiaries, this complex process is essential to closing the deceased person’s affairs. 

briefing on succession & wills, According to Section 2(h) of the Indian Succession Act, 1925, a “Will” is a formal declaration of a testator’s (the person who has made the will) intentions about the vesting of his or her possessions and assets that the testator wishes to remain in effect beyond their death. 

In India, there are two types of succession that apply to a deceased person’s assets: testamentary succession and non-testamentary succession. Non-testamentary succession is determined by following the terms of the relevant succession laws based on the deceased person’s religion. Testamentary succession occurs through a testament or will.

 

“Probate” is defined as a copy of a will attested under the seal of a court of competent jurisdiction with a grant of administration of the testator’s estate in Section 2(f) of the Indian Succession Act, 1925. It is a procedure for verifying the legitimacy and content of a will, and it can only be given to an executor designated by or under the will by a court with appropriate jurisdiction.

 

• HISTORICAL CONTEXT

India’s probate system emphasises testamentary freedom and takes into account the country’s diverse cultural and religious landscape by fusing colonial legal influences with indigenous legal traditions.

 

Because of India’s long history of colonisation, the probate system in that nation has its origins in the English legal system. India’s probate system was established by the Probate and Administration of Estates Act, 1881, which was passed during the British colonial era. Later, the Indian Succession Act, 1925 took its place, and it still controls estate administration and probate throughout the nation.

The legal procedure by which the court determines the validity of a deceased person’s will is known as probate in Indian law. The executor designated in the will has the legal right to manage the estate and allocate assets in accordance with the deceased’s desires thanks to the grant of probate.

 

Although the Indian probate system is comparable to the English system, it is shaped by various religious and cultural customs. The Indian Succession Act provides guidelines for intestate succession that take into account each person’s personal and religious laws in situations where there is no will or when the will is declared invalid.

 

• WHAT GOES THROUGH PROBATE AND WHAT NOT 

if someone do not have a will, everything they own will go through probate procedure. 

1. Any inheritance in which the recipient predeceases the giver: Should you neglect to amend your Will and a stated beneficiary dies before you do, the courts will handle the disposition of this portion of your estate.
2.  Non-titled property refers to any item you own that is not registered. 
3.  Sole ownership property: Probate is required to establish ownership and other details for property that is solely named in your name. 

 

Meanwhile there are certain assets and properties which will not go through probate by proper planning.

1. Things with designated beneficiaries: Life insurance plans, for instance, have designated beneficiaries, so the profits flow to them immediately and bypass the probate process.
2. Goods placed in a living trust: Since a living trust owns the goods inside it, anything in it can go to your beneficiaries in accordance with the terms of the trust after you pass away, avoiding the probate procedure.
3. Jointly titled property with survivor’s rights: Following your death, jointly titled property with survivor’s rights will inherently transfer to a survivor. In this instance, the property does not require probate, etc.

 

• LEGAL FRAMEWORK OF THE WILL

1. A) Testamentary capacity: The individual making the test must be of sound mind and comprehend the nature of creating a will and its implications.
2. B) Voluntariness: It must be produced freely, devoid of deception, undue influence, or force.
3. C) Legal age: In order to draft a valid will, the testator must be at least eighteen years old, or the age of majority. 
4. D) In writing: Due to its legitimacy, a written will is favoured over an oral one. 
5. E) Signature: In order to establish the validity of the will, the testator must attest to it. 

 

• THE PROBATE PROCESS

Article 137 of the Limitation Act, 1963 states that a probate petition needs to be completed within three years of the testator’s passing. 

1. Application made by the will’s designated executor The executor must submit an application via a probate petition to a District Judge within seven (7) days of the testator’s death. This is the first stage. The Indian Succession Act, 1925, Section 276 specifies the information to be included in the probate petition, including the testator’s date of death.

• Annexed to the petition is a copy of the testator’s last will and testament, along with information on the assets that are most likely to devolve and be given to the petitioner.

1. Verification of the Will’s validity: In accordance with Section 280 of the Act, the petitioner and the Will’s witnesses must attest to the Will’s contents, and in accordance with Section 281 of the Act, one of the witnesses must state that they saw the Will signed.
2. Grant of probate: After receiving the petition, the relevant court with jurisdiction confirms the information and notifies the testator’s closest relatives so they can submit a claim for probate. If the kinsmen of the deceased testator have approved the probate and there are no objections, the probate is approved and sealed under the appropriate court’s seal.

• EXECUTOR’S RESPONSIBILITIES 

An executor is a person designated in a will to administer the estate while it is being probated and to carry out the wishes of the deceased.

 

1. Probate filing: The will should be filed with the relevant court to start the probate process.
2. Notice to Interested Parties: Inform heirs and beneficiaries about the probate process.
3. Asset Inventory: Make a thorough list of all the things that the departed person owned, such as real estate, bank accounts, investments, and personal items.
4. Asset Appraisal: To ascertain the fair market worth of specific assets, if required, get expert appraisals.
5. Record-Keeping: Ensure that all correspondence and financial transactions pertaining to the estate are accurately documented.
6. Closing the Estate: After all tasks are finished, file the required paperwork with the court to formally end the probate process.
7. Communicate with Beneficiaries: Answer any questions or concerns beneficiaries may have and update them on the status of the probate process.
8. Accounting: Compile a final financial statement of the estate’s dealings and give it to the beneficiaries.

 

It is crucial that the executor follows the law, the terms of the will, and the law with thoroughness and transparency. 

 

• DISPUTE RESOLUTION IN PROBATE

 

1. Potential disagreements among beneficiaries: Beneficiaries may petition the probate court to challenge the will if they think it is invalid. After then, the court will assess the evidence put out and decide whether or not the will is legitimate. If they feel they should have a bigger part or are worried about the executor’s activities, they can potentially make claims against the estate. Based on relevant statutes, the court will consider these claims and render decisions. 

 

2. Court intervention: As a first step in resolving disputes, courts may promote mediation or mandate it. Discussions are facilitated by an impartial third party, and if an agreement is reached, it can be submitted to the court for approval.

In cases where beneficiaries cannot reach a resolution, the court may intervene and make decisions based on the evidence presented. This can include determining the proper distribution of assets or addressing other disputes.

 

Despite all this, there are some challenges to probate. They are as follows- 

• Time-consuming

Property distribution to beneficiaries may be delayed by probate procedures, which can drag on for months or even years. Delays are caused by hearings, documentation, and court schedules.

Among other requirements, the process of determining notice periods and assembling and valuing the assets of the deceased can be laborious. 

 

• The financial effects

To mention a few, the costs borne by creditors include probate fees, executor’s fees, attorney’s fees, appraisal costs, accounting and administrative costs, etc. 

 

• Impact on privacy

Probate proceedings are generally a matter of public record. This means that details about the deceased person’s assets, liabilities, and the distribution of their estate become accessible to the public. Anyone can review the probate file, which may include sensitive financial information.

Names of beneficiaries, their inheritance amounts, and any specific instructions or bequests outlined in the will are also revealed as soon as the will comes public. 

 

CASE STUDY: the estate of Mr. Ramesh

 

Background:

Mr. Ramesh, a widowed retiree, passed away, leaving behind an estate consisting of a primary residence, a substantial investment portfolio, and personal belongings. He had two adult children, Lily and Daksh, who were named as beneficiaries in his will. Mr. Ramesh appointed his longtime friend, Ms. Sneha, as the executor of his estate.

 

Probate Process:

 

1. Filing for Probate:

   – Ms. Sneha initiates the probate process by filing the will with the local probate court.

 

2. Notification to Beneficiaries:

   – Lily and Daksh, as beneficiaries, are notified regarding the probate proceedings.

 

3. Asset Inventory:

   – Ms. Sneha works on compiling an inventory of Mr. Ramesh’s assets, including obtaining appraisals for the real estate and investment portfolio.

 

4. Probate Court Approval:

   – Ms. Sneha seeks court approval for her appointment as the executor and presents the inventory of assets for the court’s review.

 

5. Creditor Notification:

   – Creditors are notified of Mr. Ramesh’s death, and a notice is published in a local newspaper, allowing creditors a specified period to make claims against the estate.

 

6. Debts and Taxes:

   – Ms. Sneha reviews Mr. Ramesh’s financial records, pays outstanding debts, and files the necessary tax returns, addressing any estate taxes owed.

 

7. Beneficiary Communication:

   – Throughout the process, Ms. Sneha communicates with Lily and Daksh, keeping them informed about the progress of probate.

 

8. Property Sale:

   – As part of the estate plan, Mr. Ramesh’s will specifies that the primary residence be sold, with proceeds to be divided between Lily and Daksh.

 

9. Dispute Resolution:

   – Lily expresses concern about the value assigned to a family heirloom. Ms. Sneha engages in mediation with Lily to reach a resolution without resorting to a court dispute.

 

10. Final Distribution:

    – Once all debts are settled, taxes are paid, and disputes are resolved, Ms. Sneha seeks court approval for the final distribution of assets as outlined in the will.

 

11. Closing the Estate:

    – The court officially closes the probate process, and Ms. Sneha files the necessary documents to conclude the administration of the estate.

 

Financial Implications:

– Probate fees, court costs, attorney fees, and appraisal expenses are incurred.

– Executor fees, if applicable, may also impact the overall financial distribution to beneficiaries.

 

Privacy Considerations:

– Details of the estate, including the will contents, become part of the public record.

CONCLUSION

In summary, the Indian probate process is an important legal mechanism that has its roots in a historical fusion of indigenous customs and colonial influences. This procedure is regulated by the Indian Succession Act of 1925, which specifies the legal prerequisites for a legitimate will, including testamentary ability, voluntariness, legal age, written form, and signature.

The process of probate entails the executor submitting an application, having the will’s legality verified by the court, and then receiving probate. Executors are essential because they handle things like alerting interested parties, inventorying assets, filing for probate, and making sure all legal requirements are met.

The lengthy process of probate, the financial ramifications (fees and charges), and the impact on privacy (probate facts become part of the public record) are some of the issues. There are systems for resolving disputes amongst beneficiaries that involve mediation or court intervention.

REFERENCES 

Read all Latest Updates on and about Probate https://www.livelaw.in/tags/probate

Probate: What It Is and How It Works With and Without a Will https://www.investopedia.com/terms/p/probate.asp

Law on Will and Probate- A Brief Summary https://www.azbpartners.com/bank/law-on-will-and-probate-a-brief-summary/

What is Probate & How to Avoid It https://trustandwill.com/learn/what-is-probate

Indian Succession Act, 1925 Universal LexisNexis  ISBN: 978-81-7534-934-6 https://www.indiacode.nic.in/bitstream/123456789/2385/1/a1925-39.pdf