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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