Probate of a will: All about probate meaning, uses and how to apply for it

Assets of a person pass on through two ways after his death. The first way under which this can happen, is through a Will. A Will refers to a legal document that states that the individual wishes regarding the distribution of his or her property after his/ her death. The person who has made the will is known as the testator or testatrix. The second method, which is automatic, is when the person does not leave any valid Will. It can also happen with respect to the assets that have not been bequeathed through his Will. In such cases, his entire estate or the assets not bequeathed through a Will, pass on to his legal heirs as per the provisions of the succession law applicable to him, based on his religion.

What is a Probate?

A probate has been defined under the Indian Succession Act, 1925 as under:

‘Probate’ 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.

The person who makes a Will, expresses his wishes to be executed after his death by certain persons who are generally named in the Will. The persons so named to execute the Will, are called its executors. A probate is a method through which a Will is certified, under the seal of a court. A probate establishes and authenticates the Will finally. A probate is a conclusive proof of the fact that the Will was executed validly and is genuine and the last Will of the deceased.

See also: Inheriting assets after death of the owner

Is a probate mandatory?

There is gross unawareness among the public at large, about the circumstances under which a Will is mandatory. Under the Indian Succession Act, 1925, a probate is mandatory when a Will is made in a place which was under the rule of 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. The provisions refer to the places as were known at the time of enactment of the Indian Succession Act, 1925. These can be understood to mean the state of West Bengal and municipal limits of metro cities of Chennai and Mumbai, respectively, in present days.

The above rule of mandatory probate is applicable, in case the Will is made by a Hindu, Jain, Sikh or Buddhist. It may be interesting to note that a probate is mandatory if the Will is within the geographical limits of these places, even if the Will does not deal with any immovable property.

So, unless covered by any of these three cases, a probate of a Will is not mandatory. However there is no restriction in law to get a probate of a Will, even if it is not mandatory. Obtaining a probate is advisable, in cases where there is a probability of the validity of the Will being contested in future on any ground.

Many housing societies do not insist on a probate, for the transfer of flats in the name of persons to whom the flats have been bequeathed, as the office bearers are not aware that a probate of a Will is mandatory in these places. However, for the properties situated in the above three territories, the housing societies or the authorities who are entrusted with registering the names of the owners, may insist on the production of a probate, for transfer of properties.

See also: All about property rights in India

Who can apply for a probate?

The application for a probate, can only be made by the executor/s named in the Will. The executor has to make an application for grant of a probate under the seal of the court, certifying the Will. In case there are more than one executors, 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 but not a probate.

How to apply for a probate?

• The executor has to make an application (petition) to the court, for issue of a probate. The petition should be filed before a competent court. The pecuniary jurisdiction may need a higher court to issue the probate in case of high-value immovable assets through an advocate.
• The executor must pay the court fees applicable based on the value of the assets.
• The executor has to attach the original Will with the application.
• In the application, the executor has to 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.
• The court generally requires the petitioners to establish the facts of death of the testator with proof, which is generally done with the help of a death certificate issued by the local authorities.
• The executors are also required to establish that the Will produced before the court is the last Will of the deceased.
• The petitioners are also required to establish that the submitted Will was validly executed by the testator.

Process followed by the court

After the application is submitted, it is verified and then, notices are issued to the legal heirs of the deceased about the fact of application for probate having been received by the court. A general notice is also published, giving an opportunity for raising any objections to the grant of the probate. In case no objections are received by the court, the probate is issued. In case the court receives objections to the issue of the probate, then, the application turns into a testamentary suit.

Cost of obtaining a probate

Since the probate is granted by a high court, you have to pay a court fee, based on the value of the assets, which are subject matter of the petition. The court fee varies from state to state. In the state of Maharashtra, it is 2% to 7.5%, depending on the slabs, subject to a maximum of Rs 75,000. In addition to the court fee, you also have to bear the lawyer’s fees. The cost would be paid out of the estate of the deceased.

Who is an executor of a will?

An executor of a will refers to an individual who undertakes the responsibility of overseeing the distribution of the properties or assets of the deceased person according to his/her wishes. It is not a mandatory requirement to mention the name of an executor in the will. However, it is advisable to name an executor, which will ensure that the will is executed correctly and as per the wishes of the deceased.

Applying for probate if executor is not mentioned in a will

If the testator has not appointed an executor in a will, the legal heirs of the testator can appoint someone as an administrator of a will. This individual is entitled to dispose of the property specified in the will. However, if the legal heirs of the testator have not decided on appointing someone as an administrator, in that case one of them may apply to the court for appointing a person as an administrator of the will.

What are the challenges to a will and probate claims?

Challenging a Will is not easy. Courts strictly hold on to wills since the testator is not alive to defend himself. However, if one can challenge a will and convince the court, the will can be voided, entirely or in part. One must consult an advocate to understand the laws before challenging the Will. One can challenge a will in the court of law.on various grounds disucssed below:

• Lack of due execution: A valid Will must be in writing and duly signed by the testator. It must be done in the presence of two witnesses, who are required to attest the Will. If the process is not adhere to, a Will can be challenged.
• Lack of knowledge or approval: A person can challenge a Will if he or she can prove that the testator was not aware what was mentioned in the Will when he signed it.
• Undue influence: One can challenge a Will by proving that the Will was procured by fraud, forgery, or undue influence, that is, the lack of free will or without enough attention to the consequences of the bequests made through the Will.
• Lack of testamentary intention: In this case, the individual must prove that the testator did not have the intention to write a Will.
• Lack of testamentary capacity: As per the laws, adults are presumed to possess a testamentary capacity. So, people who are 18 years old or above are entiled to make a Will. Hence, a Will can be challenged on the basis of senility, dementia, insanity, or in case the testator has been under any substance influence, or lacked the mental capacity to make a Will. Here, the person challenging a Will based on mental capacity is require to prove show that the testator did not realise the consequences of writing a will at the time of its creation.
• Fraud or forgery: The challenger of the Will must establish that the Will was forged, that it was not signed by the testator, or it was created through fraudulent act.
• Revocation of earlier Will: If a Will has been registered, it can still be challenged in a court. In case there are suspicious facts, the court will examine the Will even if it is registered. A registered Will may not be considered the last testament if there is a new Will, which is valid and even if it is unregistered.
• Claims by family: A family member can challenge a Will if it can be proven that they were not provided for satisfactorily in the Will.

How and when can a will after a probate can be contested?

According to the Succession Act, there are certain grounds based on which a probate of a Will can be revoked. However, it can be done if the individual challenging the probate proves before the court that it is essential to revoke the probate ‘for just cause’.

One can challenge the Probate of Will in India in the following scenarios:

• The proceedings to attain a grant of probate were defective in substance
• One acquired the grant of probate by unfair means, by making a false suggestion or concealing something that is material to the case
• One acquired the grant of probate through an untrue allegation of a fact necessary in point of law for justifying the grant, though such allegation was made in ignorance or unintentionally
• The grant has become useless and inoperative through circumstances
• The individual to whom the grant of probate was made has knowingly and without reasonable cause omitted to exhibit an inventory or account as per the provisions of Chapter VII of this Part or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

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(The author is a tax and investment expert, with 35 years’ experience)