This article has been written by Ms. Gargi Lad, a third-year student at NMIMS, School of Law, Bangalore. 

INTRODUCTION

A will is a formal written document that details the distribution of a person’s assets upon death. In order to execute a will in some instances, and limited to certain legal jurisdictions like Mumbai, Kolkata, and Chennai, the executor of the will would have to file for probate in order to validate it. 

A probate, as defined in the India Succession Act, 1925, is :‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’.

Differentiating Between Probate and Letter of Administration

A probate is often mistaken with a letter of administration, since they both are the two main legal procedures that are involved in settling a deceased person’s estate. To ensure that assets are distributed properly, it is essential to comprehend the differences between these two. 

A Probate: Probate is a legal process that validates the authenticity of a Will and grants legal authority to the Executor named in the Will to administer the estate, and is necessary when the deceased left behind a valid Will. It is primarily required to manage and distribute assets as per the Testator’s wishes. The Executor, designated in the Will, plays a pivotal role in the Probate process. They ensure that the terms of the Will are carried out accurately.

Letter of Administration: A Letter of Administration is a legal document issued by the court when the deceased did not leave behind a valid Will , or is said to die intestate. It grants authority to an Administrator appointed by the court to manage the estate. In cases where the deceased did not leave a Will, a Letter of Administration is required to authorise someone to oversee the distribution of assets according to the laws of intestate succession. The Administrator, appointed by the court, assumes the responsibilities that would typically be held by an Executor in the Probate process.

UNDERSTANDING PROBATE AS PER INDIAN LAW

Probate, as a legal process, finds its foundation in The Indian Succession Act of 1925. This significant legislation outlines the procedures and regulations pertaining to the validation and execution of Wills in India. The Act serves as the bedrock for Probate proceedings, ensuring that the wishes of the deceased are upheld in a legally sanctioned manner.

Probate itself refers to the formal legal process of validating a Will. It involves the recognition by a court of competent jurisdiction that the document presented as the Last Will and Testament of a deceased person is indeed genuine and reflective of their final wishes. This validation grants the Executor mentioned in the Will the legal authority to carry out the distribution of the deceased person’s assets as outlined in the document.

Furthermore, one noteworthy aspect of Probate in India is its consistent application across various states. Regardless of the specific region or jurisdiction within the country, the principles of Probate, as outlined in The Indian Succession Act, 1925 maintain a uniformity that enables a seamless and standardised process for validating Wills. This uniformity ensures that the legality and authenticity of a Will remain undisputed, regardless of the location within India.

IMPORTANCE OF A PROBATE

The legal procedure of probate plays a crucial role in ensuring the equitable and well-organized allocation of a dead individual’s assets to their beneficiaries in India. The goal of the probate procedure is to offer a clear, formalised method for allocating assets and resolving conflicts that can emerge between relatives or other interested parties.

Here are some key reasons why probate is important in India:

• Ensuring legality of the Will: As part of the probate process, the legality of the will is checked to make sure the deceased’s desires are being carried out legally. This lessens the possibility that contested or fraudulent wills will be carried out.
• Clear and transparent approach for Asset Distribution: The probate process helps to prevent disagreements and legal action among surviving family members or other beneficiaries by offering a clear and transparent mechanism for the distribution of the dead person’s assets.
• Resolving Unpaid Debts and Taxes: The probate process makes sure that any unpaid bills or taxes due by the decedent are taken care of prior to the distribution of assets, which helps shield heirs from creditors suing them.
• Protecting The Interests Of Beneficiaries: By making sure that the assets are divided in line with the dead person’s desires and that the beneficiaries receive their fair portion of the estate, the probate procedure serves to safeguard the interests of the beneficiaries listed in the will.

WHEN IS PROBATE REQUIRED?

Probate is mandated in specific situations to ensure the orderly distribution of a deceased person’s assets according to their expressed wishes. Understanding when Probate is required is crucial for navigating the legal process effectively.

• In India, Probate is mandatory in the following circumstances: 
• If the Will is made by a Hindu, Buddhist, Sikh, Parsi or Jain in the geographical limits of Mumbai, Chennai or Kolkata. 
• If the Will includes at least one immovable property situated in either of these cities.

It is worth noting here that while a registered Will adds an extra layer of safety in case of disputes among legal heirs, it has nothing to do with Probate. A Probate suit must be filed with the appropriate court to ensure that the Will is genuine, or authentic. Therefore, though it may significantly streamline the process, a Probate petition is required whether there is a registered Will or not.

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THE PROCESS OF OBTAINING PROBATE

The Executor must file a Probate petition in the High Court, and submit certain documents pertaining to the Testator’s death, along with the applicable court fees. The court fees are capped at a certain amount, which varies according to the state. 

Once the court is satisfied with the genuineness of the Will and a reasonable amount of time has passed without any objections being raised, Probate is granted to the Executor.

Initiating a Probate application involves several crucial steps:

1. Documentation Preparation: Compile all required paperwork before starting the probate process. This usually consists of the original Will, the testator’s death certificate, affidavits, declarations, a list of the testator’s legal heirs, an asset list, and a beneficiary list.
2. Probate Petition Filing: An important document that provides important information on the dead, the Will, and the assets involved is the Probate petition. To prevent issues, please prepare this petition with precision and care.
3. Affidavits and Declarations: In certain situations, the application may need to be supported by affidavits and declarations. These court records offer more background information and confirmation.

Essential Documents For A Probate Application

• Original Will and Codicils (if any): The original Will, which describes the deceased’s desires for the distribution of assets, is the foundation of the Probate application. Codicils, or Will revisions, if any, ought to be mentioned as well.
• The testator’s death certificate: Providing the Testator’s official death certificate is an important step. This document is required for legal actions and acts as evidence of the person’s passing.
• List of Assets and Legal Heirs/Beneficiary: It is imperative to compile an exhaustive inventory of assets, beneficiaries, and legal heirs. This is a crucial component of the Probate application that lists the beneficiaries of the estate.

Submitting the application to the appropriate court : Choosing the appropriate court to file the Probate application with is essential. This usually depends on where the assets are located geographically and where the testator lived when they passed away.

Submission and Review: The completed application is legally sent to the designated court when it has been prepared. After then, the court authorities evaluate everything to make sure all the paperwork and records are in order.

Here, it is generally advised to file for probate as quickly as possible following the testator’s passing. Probate statutes do not have set deadlines; nonetheless, the duration may differ based on the court with appropriate authority. When it comes to estate planning, probate is essential to making sure that a person’s final wishes expressed in their Will are honoured legally and that their belongings are dispersed in the way that they intended.

CONTESTING A PROBATE SUIT

Bringing up legal challenges to a will’s execution or validity is part of contesting a probate lawsuit. In order to make sure that the final intentions of the deceased are appropriately reflected, this procedure is essential. The following are the most typical justifications for objections:

• When The Testator Lacks Capacity: This ground asserts that the Testator (the person making the Will) lacked the mental capacity i.e. he was not of sound mind to understand the consequences of creating a Will. Contestants may present medical records, expert opinions, or eyewitness accounts to demonstrate that the Testator was not of sound mind at the time of making the Will.
• The Testament Was Made Under Undue Influence: Allegations of undue influence suggest that the Testator was coerced, manipulated, or pressured into making specific provisions in the Will against their true intentions. Contestants might provide testimonies, correspondence, or other documentation indicating suspicious or controlling behaviour by a party benefiting from the Will.
• The Will Is Obtained By Way Of Fraud Or Forgery: Contesting on the grounds of forgery or fraud implies that the Will document itself is a fraudulent representation, or that the Testator’s signature was forged. This may involve obtaining handwriting experts to examine the signature and handwriting in the Will.

COST OF OBTAINING A PROBATE OF A WILL

Given that a high court grants probate, a court fee will be assessed in accordance with the asset values that are the focus of the petition. States have different court costs. Depending on the slabs, it ranges from 2% to 7.5% in Maharashtra, with a maximum of INR 75,000. In addition to the court cost, you also need to pay the lawyer’s costs.

DISADVANTAGES OF A PROBATE

Probate is a costly, time-consuming, and invasive process. The total cost of court fees, attorney fees, bonds, accounting expenses, and personal representative fees is high. The fees associated with probate may increase if your estate is administered without a will. One of the longest-running legal processes is the probate process. Thirteen months is the median settlement period, according to studies conducted in one state. It may take several years to resolve the legal dispute that arises if the probate procedures are disputed. The privacy of a family is also violated by probate procedures. Public records of the family’s private financial records are made during the probate processes, which are held in open court. The family is made to provide a list of all of their assets, including real estate, investments, and savings, for public scrutiny. Furthermore, anybody with a computer may readily view the probate records of your family since a growing number of probate courts are now posting their data online. 

CONCLUSION

Probate of a Will becomes extremely necessary in cases where the likelihood of dispute on the part of the Will is significantly higher. The probate laid a legal ground for a Will and protected the individual’s interest mentioned in the Will. It’s a term associated with a legal process under which a will is examined to check whether it is legitimate and valid. The testator requires time and money to pay court expenses depending on the amount of the assets granted under the Will, in addition to the executor of the testator’s Will having to undertake the time-consuming process of seeking probate. But as it is already mentioned, in certain situations, obtaining Probate of Will is required; in other situations, however, it is not.

REFERENCES

1. Family Law Lectures, by Dr. Poonam Pradhan Saxena, ISBN-10 9391211666, 5th edition
2. The Indian Succession Act, 1925
3. The Indian Succession Act, 1925, Sanjiva Row, ISBN-10 8187162325, 7th edition
4. The Indian Succession Act, Paruck , S S Subramani & K Kannan,  ISBN-10 9386515865, 9th edition
5. Law of Wills, T.P.Gopalakrishnan, ISBN- 9789391211677, 11th edition