Real estate

This article has been written by Khan Saba pursuing the Certificate course in Real Estate Laws from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and  Zigishu Singh (Associate, Lawsikho). 


Probate court is a branch of the legal system that handles wills, estates, conservatorships, and guardianships, as well as the placement of mentally ill people in facilities meant to help them. When wills are challenged, for example, the probate court is in charge of determining the legitimacy of the document as well as the mental soundness of the individual who signed it. The court also determines who receives what percentage of the deceased’s assets, depending on the instructions in the will or, in the absence of a will, other laws in effect. An individual begins the probate process by filing a petition with the state’s probate court system, which serves as the starting point for the procedure. This petition is often submitted by a family member of the deceased or by the executor or administrator of the deceased’s will and estate plan. The probate court subsequently makes an order appointing a person to serve as the executor or administrator of the deceased’s estate, and the process is completed. Among other administrative responsibilities, the executor or administrator is in charge of dispersing the deceased’s inheritance to the appropriate recipients after the death. A probate lawyer is frequently retained to assist with the nuances of the probate process.

The subject matter of a court’s proceedings is determined by its jurisdiction, and interim relief is issued to safeguard such subject matter. To determine whether a testamentary court has the authority to award interim relief, one must first grasp the jurisdiction of a testamentary court as well as the subject matter of proceedings before it. The probate court’s job is to ensure that a deceased person’s obligations are paid and assets are distributed to the right beneficiaries. The legal process of managing the assets and obligations left behind by a recently dead individual is referred to as probate. Probate is a comprehensive legal procedure that encompasses the general legal process of dealing with a deceased person’s assets and obligations, the court that oversees the process, and the actual distribution of assets. Each state has its own set of probate courts. Some states refer to it as a surrogate’s court, orphan’s court, or chancery court rather than a probate court.

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What is the difference between Grant of Probate and Letters of Administration?

There are confusions and misunderstandings about inheritance procedures, so here we will explain the difference between the Grant of probate and Letter of Administration. When people die, their assets like property, bank account, personal belongings, etc. left behind is known as their Estate. In order to be able to handle the estate of the deceased, it is necessary to obtain a legal guardianship system from the probate court. The statutory guardianship system, issued by the real estate register, is known as the power of attorney that allows anyone involved in the real estate to close their bank accounts, redeem their investment and sell or transfer their real estate. The Grant of Representation is provided in two different forms i.e “Grant of probate” if the person dies with a will or “Letter of Administration” if the person dies without a will.

Grant of Probate

The property will only be issued to the executor nominated in the will. Once the executor has obtained the estate, she/he is legally authorized to manage the property and can initiate the redemption of the property and transfer to the beneficiary specified in the will. The court needs to make sure that the will is valid and that the appointed executor is the right person to handle the estate.

Real estate grant is a legal confirmation that the will is valid. When the grant is issued, it means that the will is officially registered and only the executor nominated in the will is authorized to manage the property.

Letter of Administration

Letter of administration is similar to a probate, but instead it is issued to a close relative of the person who died without a will. Letters of Administration is the document issued by the Probate Registry to the administrators authorising them to deal with the estate. This process however is not automatic and you need to apply for the letter to confirm that you are entitled to manage the estate.

This can cause problems if the family cannot agree on who is best to be an executor of the estate. Such disputes might take place and the financial cost can increase rapidly. Letter of administration can also be issued when a valid will is available but the executor nominated in the will did not apply for grant of probate. This may be in the scenario where the executor does not want to act as executor or she/he might have already passed away. 

Case law : jurisprudence on jurisdiction of Probate Court

The Bombay High Court simply outlined the authority of a testamentary court in Balan Alias Balendu Jayant Sawant v/s. I.K. Agencies Pvt. Ltd. According to the law of testamentary succession, no matter what property is being bequeathed in a will, it does not have to be determined who owns it. This court’s only job is to determine if the deceased was of sound mind and capable of making a will and to ensure that the will is in line with the law. It only matters whether or not a person’s will is their final testamentary instrument, whether or not they were in a sound state of mind when they created it, and whether or not the will was properly executed and witnessed as required by law.

Rupali Mehta v/s. Tina Narinder Sain Mehta was a testamentary litigation in which the Plaintiff filed a Notice of Motion requesting for the appointment of a Court Receiver as well as other interim remedies in a testamentary suit. The Notice of Motion was dismissed because it was determined to be unconstitutional. The Bombay High Court conducted a thorough examination of the relevant articles of The Indian Succession Act, 1925, and the Code of Civil Procedure, 1908, in order to decide if the court has been granted the authority to intervene in order to preserve property rights in the case. Before presenting the ratio, a brief summary of the clauses under consideration has been provided.

The court has the authority to intervene in order to defend the property, according to Section 269 of the Act. This clause, on the other hand, does not apply in the event of a Hindu, Mohammedan, Buddhist, Sikh, or Jain who has died intestate, or in the case of a Christian who has died intestate. Additionally, Sections 192 and Section 193 of the Act make provision for summary procedures in the event that the deceased’s property is in urgent need of protection. These rules, on the other hand, can only be invoked when a person who has no legal claim to the property takes forcible control of it. After carefully examining all of the relevant clauses, the Court concluded that there was no provision in the Will permitting a testamentary court to issue interim orders as a matter of routine for the preservation of the estate’s assets while a testamentary suit was pending.

Despite the express provision of sub-section (2) of Section 269 to read a broad authority to provide interlocutory remedy in respect of property claimed to be part of the deceased’s estate into the provisions of Sections 266 and Section 268 prior to the issuance of probate, this interpretation is reinforced by the notion that the testamentary Court is primarily concerned with the genuineness and voluntariness of the deceased’s Will in probate procedures. The probate court has no jurisdiction over property-related issues. Though the Appellant made an assiduous effort to rely on the Act’s provisions, the Court is primarily concerned in this instance with the powers of the testamentary Court in exercising its authority in a petition for the award of probate. There can be no resort to the use of the Civil Court’s inherent powers in light of the specific provision contained in Section 269(2).

A testamentary court cannot provide interim reliefs because of the nature of the court’s jurisdiction and the subject matter of the proceedings. To protect the property of the deceased, a party seeking to have an administrator pendente lite appointed by the testamentary court, apply for summary proceedings under Section 192 of the Act if applicable, or seek interim reliefs from a civil court would have to successfully make out a case before the testamentary court.

Critical analysis and conclusion 

The Grant of Probate empowers the personal representative to handle the deceased’s estate. With a Grant of Probate, you will be allowed to act in the deceased’s place, and organisations such as banking institutions will recognise your legal authority.

When a will exists and the individual applying for the grant is the personal representative specified in the will, a Grant of Probate is issued. If the individuals listed as personal representatives in the will are unable or unwilling to accept the appointment, another person may be given a Letter of Administration with the will Annexed. If no will exists, the court may grant a Letter of Administration.

Once probate has been completed, you or your solicitor will have the legal authority to govern the deceased’s estate, if you so choose (property, money and possessions). Depending on whether or not the individual left a will, you will get a grant of probate; if there was no will, you will receive a letter of administration.

If there is a will, a personal representative is also known as an executor, and if there is no will, a personal representative is known as an administrator. This individual is the one who will be in charge of managing the estate after the death of the testator. Understanding what a probate is and how it works is critical because it will help you understand what to do next after the probate has been granted.

It might be tough to contest a Will. In most circumstances, courts strictly enforce Wills since the testator is no longer there to defend himself. If you have an interest in the Will, you may contest it, and if you are successful in persuading the court, the Will can be annulled whole or partially. It is essential to get the opinion of a professional lawyer before contesting the Will, since the legislation governing Will challenges is intricate, and each situation is unique.

A legal Will must be written and signed in the presence of two witnesses, who must likewise testify to the Will. If the procedure is not strictly followed, the Will might be contested in court. People above the age of 18 are required by law to prepare a will. Adults are considered to have testamentary competence; however, the Will may be contested on the grounds of senility, dementia, insanity, or that the testator was under the influence of a drug or otherwise lacked the mental ability to write a Will.

It is possible to revoke a Will’s Probate under the terms of the Succession Act, but only if the person contesting the Probate can persuade the appropriate court that the revocation is required “for reasonable cause.” If you’re going to dispute a probate, you’re going to have to do it in accordance with the law of limitation, which states that any challenge to a probate that is time-barred can’t be accepted by any court of law. Furthermore, an order of revocation of the Probate would take effect immediately and would not erase any legitimate transactions made by the executor while the Probate was pending.

Seeking Probate of Will is a time-consuming operation that must be completed by the executor of the testator’s Will, and the testator must also invest time and money to pay court costs based on the value of the assets provided under the Will. However, as previously indicated, it is mandatory to seek Probate of Will only in specific instances, while it is not necessary to seek Probate of Will in other cases.


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