Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Probate In India: Definition, Importance & Application---- What is a Probate?

 

Probate In India: Definition, Importance & Application----

What is a Probate?

The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Succession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’.

Probates are issued to the executors of the will, to authorize them with a seal of approval from the court. In case there are no executors of the will, only a simple letter of administration is issued by the court, and not a probate.
When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will.

Importance of a Probate

Now, it is established that a probate legalises a will or the executor of the will to transfer the properties in the names of individuals to whom the property is bequeathed.

However, there are reasons as to why a probate might become crucial. Let’s say a property, within a society, is bequeathed to an individual and he or she wants to occupy it. Since, as per the society register, the owner is the person who has died and left the Will, unless the executor shows a probate stating their authority to transfer the said property, the society might not agree to the transfer.

A probate is issued for a will or any codicil attached, by persons of Indian Hindu, Parsis, Buddhists, Sikhs or Jains, primarily in the cities of Chennai, Kolkata and Mumbai.

In case the will is made outside these territories, but for assets situated inside, it would still require a Probate.

A probate is completely different from the Letter of Administration, which is allotted when the will does not name an executor or a will is not made by the deceased person.

Application for Probate

A probate is issued with reference to Section 57 and Section 213 of the Indian Succession Act. The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached.

One can apply for a probate after seven days of the death of the Testator (or the person who makes the will and is the owner of the property to be distributed).

The application for probate, need to be made with the help of a lawyer or an advocate, to the High Court, under whose jurisdiction the property might fall. Although a lower court may be empowered to supply a probate for immovable properties of a small value, a probate from a higher court is required for high-value immovable assets.

Documents Required for Probate

While submitting a probate application, you need to submit certain documents that prove that:
a.The will is genuine and is the last will made by the testator.
b.The proof of death of the testator.
c.That the will is validly executed in clear conscience of the testator.

Grant of Probate

Once the application is submitted, it will be verified by the authorities and letters (notifications) will be sent out to the nearest kin of the deceased, intimating them of the issue of probate. A general notice is published for the public to view, and giving an opportunity for raising any objections to the grant of probate.

The probate is issued if no objections are received from any kin or any general public, and is done after the court fees are paid. The court fees depend upon the value of the immovable assets.

A probate, though it takes time to obtain and may cost you a tiny percentage of the inheritance (court fees + the lawyer’s fees), is essential, if there are multiple assets to handle, and those immovable properties are present in various states. Also, a probate is a completely fool-proof way of the handling such a matter and is imperative when high-value properties are being dealt with.

What Are The Duties Of An Executor Of A Will?

An executor plays a crucial role in implementing the intentions of the deceased, as written in the will. An executor is, therefore, the legal representative of the deceased (the testator). He or she has been given an authority to dispose off the assets of the testator as per the will (and the codicil, if any).

Who can be an Executor?

Anyone can be an executor. It is usually one of the nominees or the person benefitting from the assets, or a third person (particularly if a dispute is otherwise likely), whom the testator trusts and would like to get involved in distributing the property over to his nominees.

Necessity of an Executor

The last will made by a testator, with instructions to dispose off the assets as per his wishes is a most crucial document. Thus, such a will needs a representative to see it through until all the wishes are carried out, as instructed. Although, persons forget or neglect to appoint an executor, this is not the best approach, as it is possible that the wrong person may take on the role of executor (usually one or the other nominee or beneficiary).

The right to choose an executor is completely that of the testator’s. So, it is the responsibility of the testator to name a person suitable to execute the will, after his/her death.

Powers and Duties of an Executor

An executor is a representative of the testator, and is legally approved. As for the duties of an executor, it varies depending upon the conditions in the will.

The general duties include:
a.Settlement or disposing of the assets as per the requests made in the will;
b.Filing application for a probate when necessary and required (only an executor can apply for a probate and he or she needs to be in sound mind and provide supporting documents for the same);
c.Filing cases in court on behalf of the testator;
d.Managing any expenses for the management of properties left by the testator until its disposal;
e.Taking care of funeral expenses from the estate (assets) left by the testator;
f.Preparing an extensive inventory of the assets to be disposed and maintaining a record of the same;
g.Collecting any debts due to the deceased as well as paying any, from the assets left by the deceased;
h.Issuing an ascent of legacy to the nominee, wherever applicable.

Advantages of Appointing an Executor

There are several thousand cases that are pending in court, all pertaining to property issues between family members.

Such problem arises in two instances:
1. When the deceased has not left a will behind (died intestate);
2. When the will mentioned one of the brothers or a nominee as an executor.

In the first case, since no will is left behind, the court appoints an administrator to see the will through. The administrator will dispose the will as advised by the testator. An administrator is also appointed when the executor is not named in the will left by an individual.

In the second case, however, the executor is one of the nominees. Say, for instance, there are two brothers and two sisters, and all of them are nominees. If the will mentions equal portions to each nominee, the executor of the will (say, one of the sons), has the sole responsibility to deal with the disposal of assets.

While the nominee-cum-executor might do it correctly, there are several examples where the nominee and the executor disposes the assets as preferable to them. This gives rise to conflicts, and many disagreements between the nominees, and thus, brings them to court.

Hence, while making a will, it is essential to understand that an executor is a very crucial person in the execution of the will, and hence, only a third person, who is both responsible and neutral, can do the right by all the nominees in question.

Also, if no executors are appointed, the court will appoint an administrator, and the whole procedure might take more time (and money) to complete.


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