Probate is understood as the legal process a will undergoes to prove its validity before anything can be apportioned to the legatees or recipients.
A Will is a testament and a legal declaration by which a person, viz the testator, names one or more persons as the executor to manage his/her estate and provide for the transfer of his/her property after his death. A Will can be made by anyone above 21 years of age in India and is a very effective tool of guidance in estate planning.
The Will can, however, be made only for self-acquired properties and not for ancestral properties. A Will always takes effect after the death of the Testator and can be revoked only during his/her lifetime. A word of caution though is that the testator cannot bequeath his estate to a charity leaving his family in a state of poverty and thus depriving the family, without giving very good grounds for such disinheritance, that would stand the scrutiny of a court of law.
Under the Indian Succession Act, 1925, any adult of a sound mind can write a Will to plan his estate after his death. Therefore, any person who has only a physical inability viz loss of sight or hearing cannot be prevented from making a Will, as long as he/she is mentally fully aware of his/her action and is doing it voluntarily without coercion, undue influence etc. The criteria to be followed is as under:
Nonetheless, this act excludes Muslims as their laws are mostly governed under Muslim Personal Law.
The following checklist in a Will helps ensure its enforceability:
Though a Will is not required to be registered and can be drawn on plain paper also, it is desirable that it be registered. The registration can be done with the Registrar of Assurances where the testator resides. A Will can be registered during the life of the testator or by the executor or legatee after the death of the testator. Later amendments should also be registered. Registration of a Will ensures that it cannot be tampered with, the authenticity of the Will is established, and allegations of making the Will under duress can also be deflected.
A Will is enforced by an executor who is the safe keeper of the rights of the beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory for enforcement of rights under the Will only by way of a probate. However, this bar does not apply to Hindus in India except, if the immovable property is in Kolkata, Mumbai and Chennai. Probate means certifying of the Will by a court of competent jurisdiction. The executor can apply for a grant of probate in the court of competent jurisdiction by way of a proper application.
Probate is understood as the legal process a will undergoes to prove its validity before anything can be apportioned to the legatees or recipients. Irrespective of whether a Will is registered or not, the executor has to initiate the probate process in a High Court or a District Court having appropriate jurisdiction. In the event there is no executor, the court can appoint an Administrator of the Estate. For probate, you have to pay a court fee, based on the value of the assets, which are the subject matter of the petition. The court fee varies from place to place and in Maharashtra, it is 2% to 7.5%, depending on the value as mentioned under the Schedule, subject to a maximum of Rs 75,000.
The steps involved in the probate process must be carried out as under.
A registered Will need not be necessarily probated, as registration means that the testator of the Will and the witnesses have appeared before the sub-registrar of assurances and that their identity has been verified. However, the registered Will can also be probated, if the genuity of the Will is in question. Nevertheless, Will does not fall within the instruments that need to be mandatorily registered under the Registration Act 1908 and even an unregistered Will is also valid. The Will has to be probated, as mentioned above and mandatorily for places like Delhi where it has been made mandatory to probate unregistered Wills to execute it.
A probate is used to protect estates so that the correct beneficiaries inherit the testator’s assets. It provides the chance to close out all creditors to the estate within 90 days. It is even used as a tool to challenge a creditor’s claim in a court of law, in case the creditor has falsely made a claim.
Therefore, probate of a Will establishes the legitimacy of a will after the death of the testator and shows the executors and legal heirs to the substance mentioned in the will. However, if there is consent among all heirs then there is no need to go through the probate process.