How to obtain probate of a Will

How to obtain probate of a Will

A Will is an important legal document which must be drafted with the help of an Advocate. Probate legalizes only a valid Will

People approach us with many queries relating to the probate of a Will. Here we discuss some of those queries.   

What is a Will?

A Will is a legal document. It contains the desire of a person for the distribution of his assets after his death.

Read More: Making a Will

What is probate?

Probate is proof of the Will, i.e. evidence of the fact that a Will exists and is authentic. As defined in the Indian Succession Act, 1925, probate is the copy of the Will issued to the executor with a seal of court and permission to handle the estate of the testator. 

Probate is an authority given by the court to the executor named in the Will.  It is required to execute the Will as per the wish of the deceased. There is a process to obtain a legal document called “Grant of probate” from the court.

The executor needs this authority for administering the Will. It is used for managing the property of the deceased as per the tenor of the Will.

Is probate of a Will necessary?

No, it is not necessary to obtain probate of a Will in every case. However, it is required when the Will is made by a Hindu, Buddhist, Jain or Sikh and

  • If the Will is made in any of the areas subject to the jurisdiction of Governor of Bengal and within the local civil jurisdiction of High Courts of Madras and Bombay or
  • If the Will is made outside but related to immovable property located in said areas.

No probate is necessary in case of Wills made by Mohammedans.

Read More: Where there’s a Will, there will be more to learn!

As per section 213 of the Indian Succession Act, an executor or legatee (beneficiary) can establish its right under a Will in any Court only if the Will is probated. A probated Will is required only in abovementioned two cases.

Process of Probate:

The executor applies for the grant of probate. The application is filed in the court having jurisdiction over the area where the property is located. The probate may be granted by a higher court or lower court depending upon the value of the immovable assets.  

Read: More: What happens if one dies without making a Will?

Along with the application, the applicant has to make submissions with documents in support of the same:

  • Fact of death of the testator
  • Time of death
  • This is the last Will, and it was duly executed (a statement to the effect that the testator signed the Will in the presence of two witnesses)
  • Share of executor (who is applying for probate)

Probate is issued on a stamp paper. The applicant submits the stamp paper. The value of the stamp paper is equivalent to the requisite court fee.

Once the application is submitted –

  • notice is issued to the next kin of the deceased
  • a public notice is also published for the general public

The notice is issued to file objections to the grant of probate in favour of the executor named in the Will.

If no objections are filed, probate is issued. If objections are filed, application is contested. The parties lead evidence, and the case is decided accordingly.

Read More: How to register a Will?

Time limit:

There is no time limit to file for probate. But unnecessary delay needs to be explained.

The process of obtaining probate requires a valid Will and possession of certain other documents to justify the claim. It is advisable to take timely legal advice for the same.

How to Claim Ancestral Property in India?

How to Claim Ancestral Property in India

Ancestral property can be defined in general parlance as the property, which has been passed on from one generation to another. There are two major conditions that a property has to fulfill in order to be an ancestral property these are as follows –

  • The property has to be four generations old at the least;
  • The same shouldn’t have been partitioned or divided into the past three generations.

Inheritance situations differ in matters of self-acquired property and ancestral property. Self-acquired property is the property that individual purchases out of one’s own income. In the case of self-acquired property, the owner can take away your share in the same. For instance, if your father has purchased a property out of his own money, he can exclude you from its inheritance. However, in the case of ancestral property, ones share cannot be taken away no matter what the situation.

The claim on an ancestral property comes through the act of birth. However, this claim into the ancestral property and the share that is given to each individual against his claim is determined by the successive generation. They decide the respective shares.

If the property is inherited from your mother, uncle, brother or grandmother, it is not ancestral property.

The partition of an ancestral property can be made by a Partition Notice or a Declaration to Separate, Partition Agreement. The partition can also be carried out through arbitration or through suits. An example of partition being, if the property is to be divided amongst five people, they will receive equal shares in the property i.e. 1/5th share each. With the development of the Hindu Succession Act in 2005, daughters too can have a share in the property. If denied a share in the property, a legal notice should be sent by the aggrieved to the erring party. Filing a suit for partition and contesting the same in court can also help in claiming the share. In case the property has been sold off without your consent, it is suggested that the buyer should also be added to a party and a suit should be filed to claim ones share.

How to apply for succession certificate in the court

How to apply for succession certificate in the court

A Succession Certificate is a document that is granted by a civil court to the legal heirs of a deceased who dies without leaving a will. It is granted by the court to realize the debts and securities of the deceased. In the case of Muthia vs Ramnatham,[1] , it was held that the privilege of certificate gives to the grantee a right to recover the debt due to the deceased person, and payment to the grantee is a good release of the debt.” It establishes the authenticity of the heirs and gives them the authority to have securities and other assets transferred in their names as well as inherit debts. In the absence of a will, if there is no heir amongst the account owners and a no nomination had been prepared by the holder (s), a succession certificate is the primary certificate through which the heirs can stake a claim to the assets of a deceased relative.

A Succession certificate is issued by the government, usually to establish a relationship for claims relating to Insurance, pension, retirement benefits or service benefits of central and state government departments, Government undertakings etc. In legal succession cases sine qua non to obtain a succession certificate is to establish the relationship.

In the matter of Paramananda Chary vs Veerappan[2] , it was held that ”The grant of succession certificate is conclusive against the debtor. Also if another person turns out to be the heir of the deceased, it does not follow that the certificate is invalid”. All required documents are to be submit while lodging the application.

Procedure to apply for Succession Certificate to The District Judge under section 372 of the Act;

  • the petitioner must sign and verify the petition;
  • the residences of the relatives and family of the deceased must be mentioned;
  • in the case of The Hindu Succession Act (Act XXX OF 1956), the names of the heirs must be mentioned in the petition;
  • the right of the petitioner should be mentioned;
  • either Ordinary house of the deceased, at the time of death, or the estate of the deceased should be inside the limits of the Jurisdiction of the Court concerned;
  • the debts and securities as to which the succession certificate is applied for should be mentioned; vii) the absence of any impediment u/sec. 370(1) of the Act or any other terms of the Act or any other laws to the privilege of succession certificate or to the legality of it in case of it was granted, must be mentioned

 

[1] 1918 MWN 242

[2] AIR 1928 Madras 213: 82 IC 604,

How to register a Will?

How to register a Will in India

A will is a document that allows for the division and distribution of an individual’s intestate amongst his heirs and others in accordance with his wishes after his demise.

The registration of a will is not compulsory; however, a greater legitimacy is attached to it once registered.

The registration of a will is considered to be more flexible as opposed to the registration of other legal documents.

The registration of wills is not time-bound, usually because they are more sensitive and delicate. An individual making the will or a testator may not always want to disclose the assets that he/she may possess. Thus, there exists no specified time period of registration.

The will has to be registered before the Registrar or Sub-Registrar under whose jurisdiction the matter lies. This should be done in the district court.

The registration is usually done in the offices of the Registrar and the Sub-Registrar, but for exceptional cases, under Section 31 of the Registration Act, the officer may in case of a special cause go to an individual’s residence. This is usually in cases of ill health or impending death.

In usual cases, a stamp duty is paid; the testator is accompanied by the witnesses to the Registrar’s office. The will is executed and the registered will can be given to a lawyer or banker so as to keep in safe custody. The registrar too has an authority to hold the will and to deposit the wills. This can be done by the will being put in a sealed cover/envelope and can be done by the testator or a person duly assigned by him.

It is a general misconception that the registered will has a supremacy over an unregistered regardless of the fact that the unregistered will is on a later date.

But it has been established by the Apex Court that regardless of the registration or non-registration of the will, the one of the later date would prevail.

There are many advantages to registering a will;

  • it cannot be tampered, destroyed or stolen;
  • it cannot be examined or even accessed without the written consent of the testator until his death