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Shivani Jain

Shivani Jain | Updated: May 28, 2020 | Category: Legal

What is the Procedure for Probate Filing in India?

As we know, a Will act as a legal document that describes the wishes concerning the distribution or disposal of the testator’s property. However, the term Probaterefers to a certified copy of the Will bearing the seal of the court of competent jurisdiction. Further, whenever the probate of a will is granted, the same establishes the Will from the testator’s death and also declares all the intermediate acts done by the executor as valid. In today’s learning blog, we will be discussing in-depth about the procedure followed for ProbateFiling in India.

What is a Probate?

As per section 2 (f) of the Indian Succession Act, 1925, a Probate means a certified copy of will bearing the seal of the court of competent jurisdiction.  By way of Probate, all the rights and duties concerning an estate is handed over to the executor. The Probate filing of the Will is a legal process by which the legitimacy and genuineness of the concerned Will is determined.

Further, in the process of Probate Filing of Will, the estate value and the beneficiaries are ascertained. Furthermore, a Probate also assists an executor to receive authorization from the court of competent jurisdiction to manage the testator’s estate under his Will. Also, it shall be relevant to note that a beneficiary can also be appointed as an executor under the testator’s Will.

Hence, Probate is a legal document that provides the power to an executor to distribute out all the assets of the testator. But the same must be done only under the instructions given in the Will.

How much is the time required for Probate Filing?

An executor can apply for the probate filing just after the expiry of seven days from the testator’s death. Further, the complete procedure concerning the Probate Filing of Will requires at least a duration of seven to nine months. However, it is significant to note that in case there is any kind of objection raised by the public concerning the Will, then the same process will take around two years to complete, varying as per the seriousness of the objection raised.

Who are all eligible for the Procedure of Probate Filing?

As per section 22 of the Indian Succession Act, 1925, only the executor who is appointed by way of Will is permitted to apply for probate filing. Further, the appointment of the Executor may be done expressly or impliedly by necessary implication. Furthermore, if in case no executor has been appointed or being named in the Will of the testator, then either the beneficiaries or the legatees specified in the Will could also obtain probate of the concerned Will.  

Who are all not eligible for the Procedure of Probate Filing?

The listed below are the individual or the persons who are not eligible or will be granted Probate of a Will:

  1. Any Minor,
  2. Any Person of Unsound Mind
  3. Any Association of Person (AOP), or Body of Individuals (BOI).
However, it the AOP or BOI if satisfies the conditions granted section 223 of the Indian Succession Act, 1925, by the State Government for qualifying as a Company. The same will then be able to go for Probate Filing of the Will.

Is it Mandatory to apply for Probate of the Will?

No, it is not mandatory to always apply for the Probate of Will. However, if in case the name of the executor is already mentioned under the Will, the same person then may have to apply for the Probate of a Will. Further, although obtaining Probate of a Will is not mandatory, but the same if granted will increase the genuineness and authenticity of the Will.

What are the Factors to take into consideration regarding Probate Filing?

The following listed are the Factors that are to being considered regarding Probate Filling of the Will:

  1. Either the District Court or the High Court with Original Jurisdiction has the power to grant Probate of Will.  
  2. The executor is required to have the Original Will with himself while filing the Petition for Probate.
  3. The execution of the original will be required to be proved by producing the witnesses mentioned in the will.
  4. Executed Will serve as the best piece of Evidence.
  5. The court will grant the Probate of Will, if it is satisfied with the execution of the Will.
  6. The Probate of Will granted by the court of competent jurisdiction will in itself does not lead to the creation of any legal title over the property.
  7. In the same way, the probate granted will not entitle the petitioner the possession of the property in dispute or question.
  8. A Probate of Will cannot be granted to any person of unsound mind, minor, or any association of individuals. However, if the AOP or BOI, satisfies the conditions granted section 223 of the Indian Succession Act, 1925, by the State Government for qualifying as a Company. The same will then be able to go for Probate Filing of the Will.
  9. Where any codicil is found after the grant of probate, then the court will grant a separate and distinct probate of that codicil.

What are the Documents needed for Probate Filing?

The listed below are the documents required for the process of obtaining Probate of a Will:

  1. The Original Will made by the deceased or the testator.
  2. Death Certificate of the concerned testator.
  3. Title deed and all the documents relating to the Movable and Immovable properties specified in the Will.

Further, in the case where the probate of Will is not by the court or the concerned executors fails to obtain it, then, in that case, the beneficiaries lose their right over the concerned inherited property.  Moreover, the executor of the Will would also do the required actions to obtain the ownership of the property.

What is the Procedure for Filling Probate Petition in India?

The following listed are the steps involved in the Procedure for Filing Probate Petition in India:

  1. For acquiring a Probate of the Will, the concerned executor is required to file a probate petition before the court of competent jurisdiction with the help of an experienced advocate. In such a case, the executor will act as a Petitioner before the court.
  2. After filing the probate petition before the court, the petitioner is then asked to establish or give proof regarding the testator’s death. Further, the petitioner is also needed to provide proof that the Will has been made by the testator along with the testator’s testament.
  3. After that, the respective court issues a notice in the local newspaper in order to invite the public for raising objections.
  4. If in case no objection is being raised by the public and the concerned court is also satisfied with all the evidence placed by the executor, then it will grant the Probate.
  5. Usually, a Probate is not required to be acquired in all the cases.
  6. According to the Indian Succession Act, 1925, in some cases, it is obligatory to acquire a probate of Will. The listed below are the cases in which it is mandatory and compulsory to obtain Probate of Will.
    1. The case where the said Will has been made by either by a Hindu, Jain, Buddhist, and Sikh, residing in the areas of Bihar, West Bengal, Orissa, and Assam, and also within the local boundaries of the civil jurisdiction of the High Courts of Bombay and Madras, then in that case obtaining a probate is necessary.
    2. In case, the Will is being made outside the territories mentioned above, but the property concerned is located in the territories, then also it requires a probate.

What are the Grounds for Challenging the Probate?

The listed below are the grounds on which one can challenge the Probate:

  1. For challenging an already issued Probate of Will, the defendant is required to prove that the probate was issued on incorrect grounds. For proving that the person can take help of the medical documents stating the testator’s mental conditions. But the same must be signed by an experienced physician.
  2. Also, specifying the witnesses that will state about the mental condition and behavior of the testator, executor, or the beneficiary prior to the registration of Will. The same will again assist in challenging the probate issued.
  3. The defendant or the person concerned can prove by showing that the executor appointed is not efficient enough to diligently perform his prescribed duties. Moreover, the same is not the right person for the position offered by the testator.
  4. By proving that the executor appointed is not performing his duties with a bonafide intent.
  5. Also, the executor is negligent and not capable of managing the testator’s estate. Hence, the same should be removed from the position of being an executor.  

What is the Fee Charged for Probate Filing in India?

The court may charge a certain percentage of the total value of the assets as the fee for granting Probate on the Will. However, the same is subject to a ceiling limit. Apart from the fee charged by the Court, the executor must also take into consideration the fee charged by the lawyer.

Conclusion

A Probate is considered as a piece of conclusive evidence regarding the authenticity and genuineness of the Will. It is issued to the executors appointed under the Will. Further, the Probate of Will granted by the court of competent jurisdiction will neither lead to the creation of any legal title over the property nor it will grant possession to the petitioner of the property in dispute or question.

 

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Shivani Jain

Shivani Jain

Shivani has completed her B com LLB (Hons) and has the experience of writing various research papers during her college time. Earlier she was working as an Associate in a Delhi based Law Firm, but her interest in writing made her pursue Legal Content Writing as a career. Her core area of interest is in writing about various legal enactments, tax and finance.


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