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 estate of testator’.
@3
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
@4 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.
@5 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
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.
@6 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).
@7 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.
@8 Documents Required for Probate
@9 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.
Section 148 (A) of Indian Civil Procedure Code, 1908 deals with the law related to the caveat. A Caveat is a Latin term, which means, ‘let a person beware’. In law, it can be explained as a notice or a precaution exercise (generally in probate cases) that a certain matter not is heard, judgment not is passed, order not is issued without hearing the person who has filed the caveat.
It can be made in an application already made or which is supposed to be made in future. Therefore, in case Mr Cyrus Mistry will approach the Supreme Court of India, Bombay High Court or National Company Law Tribunal then his case will not be heard without hearing the Tata Group due to the caveat exercised by them.
As explained by law, the following can file a caveat petition:
Any person claiming a right to appear before the Court,
Where an application is expected to be made
Where an application has already been made
In a suit or proceeding instituted
In a suit or proceeding which is about to be instituted.
@12 Duty of the court after filing of caveat
Once the court has accepted a caveat petition then it is the duty of the court to inform the person by whom caveat was filed if any case as expected by him is filed. The law says, “the Court shall serve a notice of the application on the Caveator”, which makes it mandatory not discretionary.
@13 Duty of the caveator
Once the court accepts the caveat then it is the duty of the person filing the caveat to serve a notice of the Caveat by registered post, acknowledgement due:
On the person by whom the application has been made
On the person by whom the application is expected to be made
This clause uses the word shall which makes it directory in nature.
@14 What caveat petition must contain?
The caveat petition must mention the following:
The Name of the Court where the Caveat is to be filed
The Suit / Petition / Appeal No. if it exists
Caveator’s Name (Person making the Caveat)
Brief Details of Suit / Appeal likely to be filed
Name(s) of possible Plaintiff(s) / Appellant(s)
Caveator’s Address for service of the Notice when it is filed
Address where Notice of Caveat sent to the Other Parties by RPAD
Another latest instance of the caveat was the caveat filed by Mr Salman Khan, asking to be heard when the Maharashtra government’s appeal against his acquittal in the 2002 hit-and-run case comes up for hearing.
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