Probate

What is it?

It is a copy of the will of a deceased person which has been certified under the seal of a court having the competent jurisdiction. The jurisdiction to probate a will lies concurrently with high courts and district courts. Once a probate is granted by the competent court, the will is validated and can be then executed by the executor. A probate is granted to the executor implied in the will, if there is no executor then the court grants a probate on the beneficiary’s demand and appoints an executor to execute the will on behalf of the beneficiaries. It cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company that satisfies the conditions that may be prescribed by state government rules.

The Process

The beneficiary or the executor has to approach the court within whose jurisdiction the matter falls by filing a petition. The petition generally mentions the relation of the petitioner with the deceased, the time of the testator’s death, the assets he has left behind and the details of legal heirs and other beneficiaries. The petition is supported by attaching a copy of the last will that is to be probated, the death certificate of the testator and a supporting affidavit of at least one witness. On receipt of the petition, the court issues a notice to the relatives of the testator so that they can file objections, if any. A general notice is also published in a newspaper.

If the will is not contested, then the petitioner has to prove that the testator is dead by producing a death certificate and that the will is valid. The court then grants the probate.

Is it compulsory?

Succession law is included in the state list in the Indian constitution. Thus, the regulations pertaining to a probate are different in every state. A probate is not compulsory in all states.
For Hindus, Buddhists, Sikhs and Jains, a probate is compulsory if the will is made in West Bengal, Bihar, Jharkhand, Orissa and Assam and territories subject to the ordinary original civil jurisdiction of Bombay and Madras high courts. It is also applicable to Parsis if immoveable property is situated within the limits of the high courts of Calcutta, Madras and Bombay. If the will is made outside these regions but bequeaths immoveable property, which is located in any of the specified places, then a probate is compulsory. For a will made outside these places, a probate is not required even if it includes immoveable assets as long as the property is not located in any of the specified regions.

What it costs?

Apart from the lawyers’ fee, the courts levy 2-8% of the value of the assets. However, the upper limit is usually fixed. For instance, in the Bombay high court, the maximum fees is Rs75,000. A simple uncontested will takes about five to seven months to be probated.

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Registering a will and obtaining a probate are mutually exclusive

What is the maximum time limit for getting a probate and the chances of its success if the will is registered? Is it necessary to call witnesses of the registered will? If the distribution of assets is already made as per a registered will, is it necessary to get a probate as the same may involve stamp duty and other expenses? If a registered will says the Hindu Undivided Family (HUF) be dissolved and be distributed among coparceners who are also members, can married daughters, not shown as members in bank records, lay claim?
—B. Kumar

There is no time limit for applying for a probate or obtaining the probate. A registered will merely certifies the authenticity of the will. Against this, a probate is granted to an executor appointed in the will for the purpose of determining whether the will of a testator was duly executed and attested and whether at the time of such execution, the testator was of sound mind and was capable of comprehending the nature and extent of his actions, and establishes the genuineness of the will. So, registration of a will and obtaining a probate are mutually exclusive and your chances of getting a probate do not increase by presenting a registered will for obtaining probate.

Courts have wide powers in matters of grant of probate. If a will is challenged or disputed, the court would generally call the witnesses of a will, irrespective of whether it is registered or not, though it is not absolutely necessary to do so.

If a will has been administered, i.e. if the assets of the deceased person who made the will have already been distributed as per the will, it is not always necessary to get a probate. However, if a probate is obtained even after the distribution of assets as per the will, the acts of the executor of the will in respect of the distribution will be validated. Obtaining a probate will attract payment of court fees and not stamp duty.
One of the things to bear in mind in respect of probate proceedings is to ensure that all the evidence needed to prove the will in court is in place and that the witnesses of the will are able to testify with respect to the execution and attestation of the will. It is important to note that the court would generally also examine the witnesses to prove the soundness of the mind of the testator at the time of executing the will and the circumstances in which the will was made and executed.

Effective 9 September 2005, all daughters of coparceners in an HUF shall be coparceners in their father’s HUF if their father was alive at the time the amending provisions of the Hindu Succession Act came into force. However, if the testamentary disposition or distribution or partition of the assets of the HUF has been effected before 20 December 2004, the same shall not be affected by the amendment. So, even if the names of the daughters, married or otherwise, do not appear in the bank records, they will by birth be entitled to and can lay claim on their father’s HUF property if their father was alive at the time of the amendment of the Act in 2005.

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For property situated in Mumbai, probate of will must be obtained - Livemint

My father acquired a freehold plot and constructed a three-storey building on it. He passed away without a will. He is survived by his wife, a daughter who is married and two sons, including me. My siblings and I have surrendered our rights to the property in the favour of our mother. The property is registered in our mother’s name and accordingly the mutation is done. My mother has made a registered will. As per the will, the property is to be distributed among her children. Recently my family has disowned my son and his wife. In the present circumstances, does my son or his legal heirs have any right over this property as he may claim it as ancestral property being self-acquired by his grandfather? I have been told that since the property is already mutated in my mother’s name, he has no rights over it. -Akshay Mohan Kapoor

The property acquired by your father and the building constructed would be considered as ancestral property. Being a coparcener, your son would have been entitled to a share in this property (your father’s). If your son was a major at the time of relinquishment, you and your siblings could not have relinquished the entire property (including your son’s share) in favour of your mother without the son’s consent. Your son would thus have a claim in the property to the extent of his share in the property that had been relinquished by you and your siblings; your son can challenge the relinquishment and also the mutation in favour of your mother. This position will not be affected by the subsequent act of disowning him and his wife. In other words, even after being disowned, your son can claim his share.
In case of immovable property (in Mumbai) bequeathed by a testator, will it be necessary to obtain probate of a will?
-Niharika Gandhi
As per the provisions of section 213 of the Indian Succession Act, 1925, a probate for a will is required to be obtained. The said section inter alia requires that “no right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed”. Further, as per the Act, the above-mentioned provision is applicable to any Hindu, Buddhist, Sikh or Jain inter alia where such wills are made in Mumbai and if made outside of Mumbai, where such wills relate to immovable property situated in Mumbai within those limits.
Since the immovable property in question is located in Mumbai, it would be necessary to obtain a probate in respect of the will to enable the executor and the legatee to be able to deal with the same.

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Probate of will is needed to establish right on inherited property in court

My mother and elder brother co-owned a flat in Mumbai. My mother wanted her share to be transferred to me and so she wrote a will and got it registered. My brother himself gave the nomination forms declaring the same to the society where the flat is located. Now that my mother has passed away, my brother wants to take over the whole property. He doesn’t believe that the will is genuine. Is probating the will the only way to go about it? Wouldn’t probating give a heads up to my brother to prepare a case against me? I have been advised to start on the probate process but due to the fact that it can take two-four years and around Rs1.5 lakh, I want to make sure I am doing the right thing. - Jitendra Desai.

Section 213 (1) of the Indian Succession Act, 1925, inter alia states that a legatee’s (a person who inherits under a will) right to property bequeathed in a will cannot be established in a court, unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained.
In the present case, it is imperative that you get your mother’s will probated as without the same your right as a legatee will not be established. In the event that your mother has not appointed an executor under her will or the person appointed as an executor expired before your mother or where the executor refuses to act as such, then you would have to apply for letters of administration.
The fact that your brother has declared in the nomination forms submitted to the society that he has only a 50% share in the flat is not binding as in this case the property is disputed.
Grant of a probate establishes conclusively the legal character of the person to whom it was granted. It also conclusively decides that the will was genuine and validly executed and that the testator has the testamentary capacity to execute the will (was of sound mind and was not forced to make the will).
Therefore, obtaining a probate or, if required, letters of administration is the only way by which you would be able to establish your right under a will. If your brother wants to contest the will, he will have to enter a caveat and file an affidavit in support of the caveat.
Thus you have been advised correctly to go ahead with the process of obtaining a probate. The process of obtaining a probate normally takes six-eight months. However, if anyone disputes the process or challenges the will, then the petition will be converted into a suit and will take much longer, even a few years. Court fees would have to be paid on the probate petition and this would depend on the value of the property that has been set out in the will. The maximum court fees payable in Mumbai is Rs75,000.

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Get probate or NOC from other legal heirs to avoid disputes

 My father had executed a will in my favour stating, inter alia, that if any movable or immovable property and any liability that may be found anywhere shall belong to me and authorized me to settle and appropriate the same and got it registered with a sub-registrar in a union territory (UT). However, he forgot to appoint a nominee for shares of a few companies held by him in physical form and didn’t mention in the will too. For his shares in demat form, he made me a nominee and mentioned my ownership on these in the will. During the transmission process, a company has asked for a probate of will or no-objection from the legal heirs and is not ready to listen to my explanation that in the UT, where the will has been executed and registered, there’s no legal requirement of getting it probated. Since the value of shares is under Rs 50,000, is the company justified in asking for these documents. How can I get these transmitted in my favour?
—Suman

It appears from your query that while your father has specifically bequeathed the shares that were held by him in de-materialized form to you, he has not specifically bequeathed to you the shares that were held by him in physical form.
If your father’s will contains a residuary clause (i.e. a clause that deals with all his left-over property other than that which has been specifically bequeathed to identified or named persons), the said physical shares will be transmitted in accordance with what has been stated in the residuary clause.
In the eventuality that the residuary clause states that the residue of the property (i.e the property that has not been specifically mentioned and bequeathed in the will) is to be divided equally among all the heirs or in a particular ratio or is bequeathed to another legatee, then the said physical shares will have to be dealt with in that particular manner. If the residuary clause states that the residue of the property is to be bequeathed to you, you shall be entitled to the said shares which are in physical form.
The company is asking for a probate of the will or a no-objection certificate (NOC) from the legal heirs of your father to ascertain that other legal heirs of your father are not entitled to the said physical shares and as a precaution to protect the company against any future claims (in particular, in the eventuality that the residuary clause does not solely entitle you to inherit the residue of the property). A person wishing to challenge the grant of a probate may do so once a probate petition has been made in the appropriate court and the court may, if it thinks fit, convert the petition into a suit.
It may be noted that it would be easier and a shorter process for you to obtain a NOC from other legal heirs of your father and you would not be required to pay any court fees for the same.

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It’s advisable to obtain probate if said will is contested - Livemint

I am the beneficiary and executor of my aunt’s will. She has left her property to me in Pune. I have not applied for a probate as my lawyer says that being the only beneficiary I do not need a probate. However, the housing society is asking for a probate before name change as they have received a letter from my cousin claiming that my aunt’s will submitted by me is a fake. If I die then do my children have to obtain probate for my aunt’s will since they are not named as executors in the will? Can the property be transferred to my name without a probated will? —Katya

While answering this query, we are assuming that your aunt was a Parsi at the time of her death and was governed by the provisions of the Indian Succession Act, 1925. We are also assuming that you have been appointed as the sole executor under your aunt’s will.
Section 213(1) of the Act inter alia states that the right of a legatee (a person who inherits under a will) to property bequeathed under a will can’t be established in a court unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained. However, section 213 (2) states that the said section is not applicable to the wills executed by Mohammedans, Hindus, Buddhists, Sikhs and Jains except in certain circumstances mentioned therein. Further, section 213 (2) states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the will in question is made or the property bequeathed under the will is situated within the “ordinary original civil jurisdiction” of the Bombay high court. Since Pune does not come within the said jurisdiction, it is not necessary for you to obtain a probate of your aunt’s will.
While it is not mandatory to obtain a probate of your aunt’s will, it would still be advisable for you to obtain a probate since your cousin is contesting the will.
To obtain a probate of a will, you will have to file a probate petition in a court of competent jurisdiction. It takes about 8-10 months to obtain a probate if the petition is not contested by any person. At the time of filing the petition, court fees will have to be paid. It is to be noted that if the probate petition filed by you is contested by your cousin (which can be done by filing a caveat in your probate petition) your petition will be converted into a testamentary suit and the genuineness of your aunt’s will, will then be adjudicated upon.
It is to be noted that as per section 222 of the Act, a probate shall only be granted to an executor of a will. Section 226 of the Act specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors as the case may be.
Thus, on reading sections 222 with 226 of the Act it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the executors survive. The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise at all as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to non-survival of any executor.
If you pass away prior to filing the probate petition, your children may apply for letters of administration with a will annexed to it. If your petition is uncontested and you pass away before the court grants you a probate of your aunt’s will, your children may intervene in the probate petition and amend the same so as to apply for letters of administration with a will annexed to it.
If your petition is contested and is converted into a testamentary suit and you pass away during the pendency of the suit, your children will be brought on record as your legal heirs. However, the prayers/release will have to be amended by your children so as to apply for letters of administration with will annexed, as your children have not been appointed as executors under your aunt’s will. Your children will be granted letters of administration with the will annexed to it and shall be appointed as administrators of your aunt’s estate.

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Probate to be granted only to an executor named in the will

My husband died of a heart attack within two years of my marriage. My husband was the only son and his two elder sisters got married before our marriage and are settled in Mumbai. The only survivor is my 75-year-old father-in-law. A month before my husband died, he gave all his property worth about Rs.5 crore to his father through his will, giving me (wife) nothing. The will has been submitted in the Pune civil court for a probate. I have challenged the will. What will be the fate of the case if my father-in-law dies before the case reaches a conclusion? Can you cite some related laws that can be helpful? Six months back, I also filed a case under Hindu Succession Act, claiming that I am the only class I heir of my husband.
— Priti

For answering this query, we are assuming that your husband’s will was executed in Pune, any immovable property that is the subject matter of such will is situated in Pune and that your father-in-law has been appointed as the executor under the will. We are also assuming that since you have challenged the validity of your husband’s alleged will, the probate petition filed by your father-in-law has been converted into a testamentary suit.
Section 213(1) read with section 57 of the Indian Succession Act, 1925 inter alia states that the right of a person to property inherited under a will cannot be established unless a court of competent jurisdiction in India has granted a probate of the will or letters of administration with the will annexed thereto have been obtained. However, section 213 applies to wills made by Hindus, Buddhists, Sikhs or Jains for wills made on or after 1 September 1870 within the territories which at the said date (being 1 September 1870) were subject to the lieutenant general of Bengal or within the local limits of the ordinary original civil jurisdiction of the high courts of judicature at Madras and Bombay.
As we are assuming that your husband’s will had been executed in Pune, under law it is not necessary to obtain a probate of his will since Pune does not fall within the ordinary original civil jurisdiction of the high court of judicature at Bombay. Thus, as per succession laws applicable to Hindus, your husband’s property automatically vests in your father-in-law on the demise of your husband due to the existence and contents of the alleged will (as it is not necessary to obtain a probate of the will to establish his right as an executor or beneficiary).
As per section 222, a probate shall only be granted to an executor of a will. Section 226 specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors, as the case may be. Thus on reading section 222 with section 226, it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the last of the executors survive.
The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to the non-survival of any executor. Thus, if your father-in-law passes away before the conclusion of the suit, the suit will die its natural death as a probate can only be granted to an executor. But since your husband’s property has already vested in your father-in-law on your husband’s demise under your husband’s alleged will, that property will be treated as the property of your father-in-law on his demise and will devolve in accordance with your father-in-law’s will (if any) and in the absence of such will, in accordance with the rules of intestate succession set out in the Hindu Succession Act, 1956.
It would be advisable for you to obtain interim relief from the Pune civil court, restraining your father-in-law or his heirs, in the event of his demise before the conclusion of the testamentary suit (i.e. the probate petition converted into a testamentary suit), from parting with your husband’s property so as to safeguard your interests.
With regard to your queries on case laws, proving that the purported will of your husband is forged or executed under coercion or undue influence or not in exercise of his free will is a matter of fact and cannot be ascertained by case laws. In order to pursue the said contention, you will have to produce evidence to show that the same is a forged will and that the estate of your husband should devolve as per intestate succession.

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