Probation of Will in India

Law
14-Dec-2022
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In India, will have been introduced through the Indian Succession Act 1925, which defines will as a legal declaration of the intention of a person about his immovable and movable property which he or she desires to distribute among their children or family members post their death.

Simply saying, a will is a legal instrument through which a person disposes of his property and it generally takes effect after the death of the testator i.e. the person who is making the will. The validity of the bill is proven when the testator signs the will and gets it registered in the presence of 2 witnesses, however, if there is a probate of will the credibility of the will increases. If you are not aware of the laws related to will India, then you don't need to know it entirely as this article contains all the details about probation of will.

What Is Probate?

The certified copy of the registered will is called a probate of will which is considered to be the official proof of the will. It is issued with the seal of the court by the executor that adds a legal character to the will. It can be applied post 10 days of the death of the testator and the entire process usually takes 6 to 9 months to complete. ln certain cases, where there is contention to the will the probe of will process can take up to 2 years to get completed.

Why Is It Necessary?

It is not mandatory to obtain the probate of a will in all cases. In certain cases where properties are owned jointly and there exist issues regarding the existence of the original will. As per the Indian succession act 1925, the probate of a will is necessary when the following conditions are fulfilled:

  • When the will is within the geographical limits of the state of West Bengal and cities like Chennai and Mumbai
  • When the village is made by a Hindu Jain Sikh or Buddhist residing in the above-mentioned geographical jurisdictions
  • When the will deal with the movable or immovable property situated in the above-mentioned geographical jurisdictions.

In many housing societies, transfers of flats to bequeathed persons usually do not require probate, as office bearers are unaware that probates are mandatory for these transfers. However, disputes related to wills may arise if there is a challenge to the validity of the will or if there is a disagreement over the distribution of assets. It's important to seek legal advice to ensure that the transfer of assets is done in accordance with the law and to avoid potential disputes.

Who Can Apply?

Having been appointed executor, you can apply for probate in the county in which the deceased resided at the time of death - by filing a petition (called a petition or application). In addition, you will need to file with the court the death certificate and the original will (if there is one). Probate can be granted to more than one executor together or at the time of the application for probate. A simple letter of administration, not probate, is issued by the court if no executor is appointed under the Will.

What is the process to probate a will?

Procedure By Court

Following is the process to obtain the probate of will from the court. The procedure is the same regardless of the types of will in India.

Filing the will petition in the court:

The original will must be filed with the court in the jurisdiction where the deceased had their last residence. The name and address of the legal heirs of the deceased Should be mentioned by the executor for the issuance of the notice. The court will then determine whether the will is valid and appoint an executor.

Payment of the fees:

Applicable court fees shall be paid by the executor which will be determined depending upon the value of the assets of the testator.

Proof of the testator's death:

Further, the court will ask the petitioner to provide proof or evidence of the testator’s death and has to confirm the validity of the will and ensure no further will was issued by the testator after this will.

Appointment of an executor:

The executor is responsible for carrying out the instructions in the will and distributing the assets according to its terms. The court will appoint an executor if one is not named in the will or if the named executor is unable or unwilling to serve.

Notice to beneficiaries:

The executor must give notice to all beneficiaries named in the will, as well as any other interested parties, of the probate proceedings.

Objections to the will:

The court will call for an objection by issuing a notice to the next kin of the deceased to look for any objections. In the event of any objection, the court may order the publication of a citation of the probate petition as a general notification to the public.

If there are no objections, then the court can grant the probate to the applicant. If there are any objections to the probate of will it becomes an original suit and the parties contesting it have to lead evidence and submit arguments for the matter.

It shall be upon the discretion of the court to pass a judgment either in favor or against the petitioner based on the evidence and submission of arguments.

Distribution of assets:

Once the court is satisfied that the will is valid, the executor will begin the process of distributing the assets according to the instructions in the will. This may involve selling property, transferring assets to beneficiaries, and paying off any debts or taxes.

Court's Order:

After all the above steps are done, the court will issue an order of probate which is a legal document that confirms the validity of the will and authorizes the executor to distribute the assets as per the will.

Grounds Of Contention After Probate?

A Will's probate can be revoked based on certain grounds stated in the Succession Act. An individual can revoke the probate if the probate is challenged and the court is convinced the revocation is needed for 'just cause.'

Following are the conditions in which probate of the will can be challenged in India:

  • Proceedings in which grant of probate was being taken were forged;
  • Probate was acquired by unfair means or false suggestion or concealment of material facts;

The grant has become inoperative due to certain situations;
It is knowingly and without reasonable cause that the individual to whom the probate has been granted has failed to exhibit an inventory or account.

FAQs

Is probate of a will compulsory in India?

Probate of a will is mandatory if the deceased person held any assets in his/her sole name. If the assets are held jointly with someone else or if those assets have a nominated beneficiary, probate may not be required. However, it's always better to consult a lawyer to get confirmation.

Where should a will be filed for probate in India?

In India, the probate of a will needs to be filed in the court of the district where the deceased person was residing at the time of their death. If the deceased person had property in multiple districts, the probate application needs to be filed in the district where the major portion of their property is located.

What is the role of an executor in will probate?

Once the probate is granted, the executor is responsible for managing the deceased person's assets, paying off any debts and taxes, and distributing the remaining assets according to the instructions in the will. The executor also has a legal duty to keep accurate records, to provide information to the beneficiaries, and to act in their best interest. They are also responsible for ensuring that the court orders are carried out and the assets are distributed properly. The Executor also needs to ensure all necessary documents are in place, the assets are properly.

How long does the will probate process take in India?

The time required depends on a number of factors, such as the complexity of the estate, the number of beneficiaries, and the backlog of cases in the court. On average, the probate process can take several months to a year or more to complete.  The functioning of the court also decides the time, if the court is less busy it may take shorter, and vice-versa.

Can a will be challenged during probate in India?

Yes, a will and the probate granted for it can be challenged in India on various grounds, such as it is not executed as per the Indian Succession Act, the will was procured by fraud, coercion, undue influence, or the testator (person who made the will) lacked the testamentary capacity to make the will at the time it was executed.

It can also be challenged if the will is not valid or if the executor named in the will is not fit to serve in that role. The most common grounds for challenging probate are that the will is not valid, that the executor is not fit to serve, or that the deceased person's debts and taxes have not been properly paid.

Do I need a lawyer to probate a will in India?

It is generally a good idea to consult with a lawyer when creating a will, as they can ensure that the document is legally valid and that your wishes are clearly stated. Will Lawyers at Rest The Case can advise you on any potential legal issues that may arise with your will and can help you plan for the distribution of your assets in the most tax-efficient manner.

Can a will be probated if the testator is not an Indian citizen?

Yes, a will can be probated even if the testator (the person who made the will) is not an Indian citizen. However, the laws and regulations regarding the probate process may vary depending on the jurisdiction in which the will is being probated and the citizenship of the testator.

How much does it cost in India?

In India, the cost of probating a will can range from a few thousand rupees to several lakh rupees. It will typically include charges for court fees, legal fees, and other expenses associated with administering the estate.

Can a will be probated before death in India?

In India, a will cannot be probated before the death of the testator (the person who makes the will). Probate is the process of proving the validity of a will in court, and it can only be done after the testator has passed away.