This article is written by Janhavi Jatar who is pursuing a Certificate Course in Introduction to Legal Drafting Course from LawSikho.

What is a Probate

A Probate means certification of the copy of a Will under the seal of a court having jurisdiction thereof. It is an instrument that bestows a right of administration to the estate of a testator. 

As per the Section 222 of the Indian Succession Act, 1925, a probate is granted only to the executor and no other person, if such person is not named either expressly or impliedly in the Will. Such a person cannot make an application for obtaining a grant of probate of the Will.

Section 213(1) makes it a requisite for every legatee or executor to acquire a probate of the Will or Letter of Administration with the Will prior to execution of the Will for creating any right in a court of law about the subject matter of the concerned Will and any estate stated therewith.

In other words, an executor or the legatee can only complete their obligations in disposition of the deceased estate, when they duly obtain a Probate/Letter of Administration from a court of competent jurisdiction. 

The Will which is required to be probated as per the provisions of the Indian Succession Act, 1925, if not probated, has no legality and cannot be enforced.

The Hon’ble Supreme Court in Chiranjilal Shrilal Goenka vs. Jasjit Singh and others held in the following words:

“… the only issue in a probate proceeding relates to the genuineness and due execution of the Will and the court itself is under a duty to determine it and preserve the original Will in its custody. The Succession Act is a self-contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is manifested in the fascicule of the provision of Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor. The Probate court does not decide any question, of title or of the existence of the property itself.”

Limitation for filing an application for probate

There isn’t a specified time limit for the grant of probate. In case the estate is in the possession of the administrator the question of the probate does not arise. The probate is conclusive only concerning the authenticity of the Will submitted before a Court.

However, Art 137 of the Limitations Act, 1963 states that limitation for making an application for which no specified time is prescribed in the particular act is three years. 

This provision was emphasised by the Hon’ble Supreme Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors., and Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma. 

Reasons Probate Is Necessary

1. A probate is necessary in case no Will is executed. Probate helps to determine the beneficiaries and to apportion the deceased’s assets and title in the property.
2. In cases where a valid Will exists, a probate is required for the assets of an estate (other than the smaller estates) to be appropriately disseminated to the termed beneficiaries for proper distribution of assets to be bequeath through the Will
3. In some cases, the authenticity of the Will may be questioned due to mistakes in drafting. To remove such errors, a probate is required. 
4. It is not always that a person will be appointed as an executor of the Will. At times, any institution, firm, or a bank may be appointed as executor. In such a case, it may waive the requirement that a Will has to be probated before Property/ money derived from it is transferred to the beneficiary. This can be done where the beneficiary is the principal heir-at-law, and other all other probable heirs-at-law have waived their rights by signing a waiver authorizing the executor / transfer the property, as the case may be, to the beneficiary. 
5. Probate of Will is essential when an estate’s assets are solely in the name of the deceased, who owned the property with no other names attached to it. The Will has to be probated to transfer the property in the name of the beneficiary(s).
6. In case there are no beneficiaries named or they have predeceased the testator, it is necessary to obtain probate of the Will. In case the beneficiaries are not named or are predeceased, the Will has to be probated to transfer funds or titles into beneficiaries’ names.
7. In the case that a deceased person is not the sole owner of a property, but owns it along with other persons, probate has to be obtained to remove the deceased’s name from the property jointly owned, and transfer own share of the property to the appropriate beneficiaries.

Details required for filing a probate petition 

For filling a probate, we require the details of the deceased person, the executor, the heir, the Will and the property that has to be bequeathed through that Will as mentioned below.

(A) For the deceased- 

1. Full name
2. Nationality and current country of residence. 
3. Latest permanent residential address (where the deceased resided at the time of his/ her death)
4. Marital status of the deceased
5. Occupation of the deceased at the time of his/ her death
6. True copy of death certificate. 

(B) For the Will- 

1. Date of execution of the Will
2. Place of execution of the Will
3. Whether the Will was registered or not?

(C) For the Heir/s- 

1. Personal details of the heir/s
2. Relation of the heir with the deceased
3. If any heirs have pre-deceased the deceased?

(D) For the Executor

1. Number of executors appointed
2. Name of the executor. 
3. Nationality and current country of residence. 
4. Age
5. Latest permanent residential address

(E) For the property that is to be bequeathed- 

1. Nature of property- movable/ immovable/ tangible/ intangible. 
2. In case of immovable property- address and description of the property
3. In case of intangible or intellectual property- registration details of a trademark, copyright, patent, design thereof if any

Filling of a probate petition

Law gives a definite procedure for filing a probate petition. According to Section 276 of the Indian Succession Act, an application for a probate petition has to be made in English or the language in ordinary use in proceedings before the respective Court. A copy of the Will has to be annexed with the application. The below mentioned details have to be provided-

1. the time of occurrence of the death of the testator.
2. Copy of the latest Will made by the testator.
3. proof that the Will has been duly executed.
4. the list of the assets to be bequeathed through the Will. 
5. proof that the petitioner or the executor has been named in the Will at the time of filling an application for probate.
6. proof that the deceased at the time of his demise had a secure place of residence, or had some property, situate within the jurisdiction of that particular Judge when the application is made to the District Judge 
7. proof that the deceased at the time of his demise had a secure place of residence within the jurisdiction of such Delegate when the application is made to a District Delegate.

Documents Required for obtaining a Probate

While applying for obtaining probate the below-mentioned documents are required to be submitted. Submission of these documents is a requisite for proving the genuineness of the Will.  

1. The Will is not only genuine, but also the latest Will made by the testator. The courts often consider the question of whether the Will that is sought to be probated is the last and final Will of the testator. 
2. The proof of death of the testator. (Copy of death certificate of the deceased). 
3. Proof that the Will is validly executed in clear conscience without any coercion or undue influence on the testator.
4. Along with the application, the petitioner has to furnish a blank stamp paper of value equivalent to the necessary court fee on which the court grants the probate. 
5. After the petition is filed in the court, the court issues notice to the next of kin of the deceased. This notice gives the next of kin of the deceased an opportunity to file their objections and make claims on the estate of the deceased. If no objections are filed, probate is granted right away. 
6. A General public notice is given in the newspaper as a declaration. 

Conclusion 

A probate elucidates a Will and shields an estate from any objection or claims to the definite beneficiaries of inheritance. Although having Probate for a Will is an effective method, and sometimes indispensable, it is not obligatory in each matter related to a Will. The strategies available depend on nature and shared ownership of the property in the estate.

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