What Is Probate Of A Will?

There are many situations when a Probate of a Will is required. In some states like Maharashtra, West Bengal and Chennai the Probate is mandatory. Sooner or later more states will follow it.  Considering this aspect appointing an executor in your Will becomes very important as he/she is the person who takes care of the distribution of your estate and is the person who applies for the probate in the court. But a probate is not a 1-2 day affair but takes few months.

Once the Will is in Probate the distribution of your estate to your legal heirs is done only when court issues the final certificate. It’s necessary then that we have a fair amount of awareness which will help us in appointing the right persons in our Will.

So what is actually a Probate of a Will and what you should know about it –

What Is A Probate?

As per Sec 2(f) – A Probate is a copy of the Will certified under the seal of a court of competent jurisdiction. Put simply it’s a certificate from the court which establishes the legal character of the person whom the grant is made. It also establishes the validity of all intermediate acts of the executor appointed in the Will. But there are situations where Probate cannot takes place even though it is required. Then the letter of administration is issued by the court which is generally  in cases where :

1. No executor has been appointed in the Will
2. The executor appointed is legally incapable or refuse to act or has died before he has proved the will
3. The executor has died after proving the Will but before he has administered all the estate of the deceased

So when the above three situations are not satisfied in a Will the court will issue a letter of administration to the legatee (Beneficiary) involved for the estate which remains.

Why Probate is Required?

As mentioned in my first lines there are specific states where probate is mandatory.  These states are West Bengal, Maharashtra and Madras (Chennai). Will made in these states or assets lying in these states has to necessarily go through a probate. Apart from this there can be many situations when a probate may be required –

1. If the executor or legatee has to establish any legal right over the assets of the deceased then probate is necessary
2. If there is no executor in the Will then probate will be required
3. The deceased has multiple assets and some may fall in the above-mentioned state
4. In general the authorities like banks, where the asset lies demand for a registered Will and some for  a probate to transfer the assets in the name of legal heirs

Who can Take a Probate?

A probate is given only to the executor appointed in the Will. In case if executor is not there then letter of administration is given by the court which has its legal jurisdiction. This letter of Administration is issued to any person who would be entitled to the whole or any part of the deceased estate. But there will be situations when there will be more than one person to claim the assets. In such cases the court will decide whether to issue letter of administration to any one person or more of them.

Probate is Not Succession Certificate

When a person dies without a Will then a succession certificate is required for legal heirs to lay claim on the assets. This succession certificate is entirely different from the probate certificate. Succession Certificate is a certificate which is obtained from a civil court to validate the case of legal heir. Contrary to this A Probate is an order issued by a court in favour of a Will which upholds and certifies its Genuity. So in simple words the biggest difference between the two is that A Probate is issued when there is a  Will while a succession certificate is issued when there is no Will.

Process of Probate

The law has laid down a specified procedure for issuing the probate. To obtain a Probate the executor have to file an application in the concerned court along with the copy of the Will. Where no executor is present then any competent person can file the application. The application have to clearly mention details like the time of testator’s death, the execution of the Will, assets involved and the name of the executor. This application is signed and verified by the executor or the person filing the application and then  by at least one of the witnesses of the Will. The applicable fee for probate is attached with the application in the form of stamp paper on which court grants the probate.

Once the petition is received the court issue notice to the legal heirs to file for the objections to grant of probate. General public is also notified through advertisement in national newspaper. Once the next generations is invited for objections then petitioner (executor or person filing the probate application) has to lay proof of death of the testator, valid execution of the Will and that it is actually the last Will. This complete process of probate may take somewhere between 4-6 months.

Probate Fees

The probate process involves a fee payable to the court. This fee is a % of the total value of assets going in for probate with some ceilings, if any. The fee varies across the state since this comes under state jurisdiction.

Assets In Multiple States

If your assets are in one state then the process of probate is simple as illustrated above. However, many of us have assets spread out in various states. In such situations you may have to  go for a probate in  respective cities where assets lie.

Points to Remember

Finally some key facts to remember –

1. Probate is not a succession certificate
2. It’s not mandatory in most states but your situation may demand going for it
3. Appointment of executor is highly important
4. There is a fee involved for the process of probate which is a substantial value as it is certain % of the total assets going for a probate
5. The assets won’t be transferred till the process of probate is completed

 Have any Will in your family gone for a Probate? How much time it took for the court proceedings?

Share your views in the comments section……

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Disclaimer: This article is a general description of Probate process within my understanding. Readers should consult a lawyer to know the details of or within the probate process.