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.

THINGS TO REMEMBER WHILE MAKING A WILL

things to remember while making a will

It’s a myth that making a will is the right of only the rich. Any adult who wants to ensure a fair & just distribution of his assets can write a will. The assets could include property, gold, financial investments, art and artefacts, even hard cash lying at home.

Every individual should write a will so that his/her heirs do not face difficulties in accessing what is rightfully theirs.

Some guidelines for making the Will

A Will need not always be on a stamp paper or be registered. It can be made even on a plain paper, and it can still be as legally valid as one made under a lawyer or supervision.

However, it is vital that the Will must identify the person preparing it as the ‘testator’. A testator is a person who is making the will.

While making a will, one must list out his/her assets and lay a blueprint of how to allocate the assets to the heirs.

It doesn’t matter if the will is typed or handwritten, all that matters is that it be signed by the testator, attested by two witnesses and be legible. It’s crucial to choose the witnesses carefully – they must be reliable. They should also be preferably younger than the testator to ensure that they are around when the will is being executed. Then it becomes an entirely valid and legitimate document for every practical purpose.

Hence making a will can be a do-it-yourself exercise for most people. However, if the assets and ownership of the property is a little complex, then one must take legal and professional help to draft the will.

Legal and professional help would ensure that there is no ambiguity and loopholes in the will that may lead to misunderstandings or disputes in future. Also, the distribution will be as per the law. It is recommended that in case the testator is old and frail, then he/she should avoid making the will him/herself and get it typed to prevent disputes among the beneficiaries.

It is important to know here that a will cannot override the natural succession of inherited/ancestral property/wealth. This means a testator cannot remove a natural heir from the inherited property.

How do you ensure that Will is free of loopholes?

To assure that your will is impeccable, follow the following instructions:

  • Personal Details to be given while making a will

The testator’s name, personal details, fathers name and residential address should be explicitly stated. The date is crucial, mainly if the latest Will succeeds those made earlier and it must be mentioned in figures to rule out any fudging.

  • Verify free will

Verifying free will helps to declare upfront that the testator was not under any compulsion or influence while making the will. The witnesses must also attest this at the end of the will.

  • Attach executor’s details with the will

The executor of the will is the backbone of the entire process. Mention his/her name, your relationship with that person and the address to avoid misrepresentation.

  • State complete Details of All the Assets

Mention complete information about the immovable property mentioned in the Will. State the entire bank accounts details, and attach the relevant deposits, lockers and insurance policies papers with the will.

  • Identify the beneficiaries clearly

The name and address of the beneficiaries should be mentioned clearly.

  • Give details of Mutual Funds Collectibles

While willing mutual fund investments, give the folio number though individual scheme names need not be named. Also, the collectables and artefacts being willed should be clearly defined.

  • Cover Other Assets

Include any other asset you may have left out inadvertently while enumerating your net wealth.

Under what circumstances can a testator review his/her Will?

You should consider changing your will if:-

  • You or any of the beneficiary mentioned in the will changes his or her name.
  • there is a change in circumstances, and you want to eliminate a beneficiary or add a new one in the will.
  • you sell any of the property mentioned in the will or acquire new ones.
  • the executor of the will dies or is declared unfit due to old age or ill health.
  • a beneficiary mentioned in the will dies.

Reasons to have a Will for Property in India

Reasons to have a Will for Property in India

A will can be defined as a legal document that divides an individual’s intestate amongst his heirs.  In order to carry out persons wish after his death, a will becomes the primary document of execution. There are many reasons as to why an individual should draft their wills and get them registered –

Custody of Children – In case of minor’s, their custody is something that may be challenged after a person’s death. In case both the parents have passed away, the will act as a directive to kith and kin left behind.

Distribution of Intestate – A will is an individual’s mouthpiece after their passing away, this mouthpiece helps with the distribution of property and its execution in accordance with individuals wishes. It helps in avoiding familial fights and arguments.

Avoids the Process of Probate – The process of probate is quite simply the administration of your assets by the court. With a will, it becomes easier and quicker as opposed to without the existence of a will.

Selection of Estate Organizer/Manager – A will helps in appointing an executor who is trustworthy and is responsible in acts of management and distribution of your estate. This appointment is made in the will itself.

Estate Taxes – Estate taxes stand reduced when the property is distributed amongst the members of the family in accordance with the will and hence it reduces financial burden and conflict.

Disinheritance – A will allows you to exclude those who were in normal circumstances going to inherit your property. Will’s can help chart a plan as to how much estate goes into who’s hands and thus an individual can save ones assets from getting into the control of those whom he may not want to make a beneficiary.

Gifts/Donations – One can give away their estate to charity or pass it on as a gift. There have often been situations where we’ve seen huge estates being donated for goodwill.

Legal Encumbrances – Other legal problems such as your estate going to undeserving parties also occur in the absence of a will.  There have been many instances where people have incorrectly benefitted from the passing away of individuals. Wills, cancel out that possibility.

Wills can be changed with change in circumstances.

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

Grounds to Challenge a Will in The Court

challenge a will document

A will is the legal statement of an individual about what he wishes to do with his property after his death. It is the intention of an individual regarding the devolution of his property and what has to be done with the same. A will is registered under Section 18(e) of The Indian Registration Act 1908,however the registration of a will is optional. A will made by Hindu, Buddhist, Sikh of Jain is governed under the Indian Succession Act, 1925.  Every sound minded individual can make a will including the deaf, dumb and blind as long as they are aware about what they do by the same. An insane individual is allowed to make a will however only during the interval when he is sane. A will however, cannot be made in a state of either intoxication or illness, where he/she is unaware of what they’re doing.

Regardless of whether or not a will is registered or not, there are the following grounds on which a will can be challenged –

Lack of Testamentary Capacity – All individuals above the age of eighteen can make a will since adults have a testamentary capacity. In order to challenge a will on the basis of lack of mental capacity, it is necessary that one is able to prove that while making the will, the individual was unaware of its consequences.

Lack of Testamentary Intention – That the individual who made the will did not intend to make a will in the first place.

Lack of Knowledge or Approval – That the individual when signing or approving the will did not know what the will consisted of.

Undue Influence/Fraud/Forgery – A will can also be challenged by proving that the approval for the will (or the will on a whole) was made through fraud, forgery or undue influence without the real and valid consent of the individual.

Revocation (Familial Claims) – According to the Hindu Succession Act, all individuals should be adequately provided for in the will and if the same is not done, it can be contested.

Lack in Execution – A legally valid will has to be in writing and also has to be signed by the testator along with two witnesses. In case the process is not followed, the will is not considered to be properly executed.

A no-contest clause can be added but that is a practice that has weightage primarily in the US, however the extent of its validity too depends on the legislations of the state.