How to obtain probate of a Will

A Will is an important
legal document which must be drafted with the help of an Advocate. Probate
legalizes only a valid Will

People approach us with
many queries relating to the probate of a Will. Here we discuss some of those
queries.   

What is a Will?

A Will is a legal document. It contains the desire of a person for the distribution of his assets after his death.

Read More: Making a Will

What is probate?

Probate is proof of the
Will, i.e. evidence of the fact that a Will exists and is authentic. As defined
in the Indian Succession Act, 1925, probate is the copy of the Will issued to
the executor with a seal of court and permission to handle the estate of the
testator. 

Probate is an authority
given by the court to the executor named in the Will.  It is required to execute the Will as per the
wish of the deceased. There is a process to obtain a legal document called
“Grant of probate” from the court.

The executor needs this
authority for administering the Will. It is used for managing the property of
the deceased as per the tenor of the Will.

Is probate of a
Will necessary?

No, it is not necessary
to obtain probate of a Will in every case. However, it is required when the
Will is made by a Hindu, Buddhist, Jain or Sikh and

• If the
  Will is made in any of the areas subject to the jurisdiction of Governor of
  Bengal and within the local civil jurisdiction of High Courts of Madras and
  Bombay or
• If the
  Will is made outside but related to immovable property located in said areas.

No probate is necessary in case of Wills made by Mohammedans.

Read More: Where there’s a Will, there will be more to learn!

As per section 213 of
the Indian Succession Act, an executor or legatee (beneficiary) can establish
its right under a Will in any Court only if the Will is probated. A probated Will
is required only in abovementioned two cases.

Process of
Probate:

The executor applies for the grant of probate. The application is filed in the court having jurisdiction over the area where the property is located. The probate may be granted by a higher court or lower court depending upon the value of the immovable assets.  

Read: More: What happens if one dies without making a Will?

Along with the
application, the applicant has to make submissions with documents in support of
the same:

• Fact of
  death of the testator
• Time of
  death
• This is
  the last Will, and it was duly executed (a statement to the effect that the
  testator signed the Will in the presence of two witnesses)
• Share of
  executor (who is applying for probate)

Probate is issued on a
stamp paper. The applicant submits the stamp paper. The value of the stamp
paper is equivalent to the requisite court fee.

Once the application is
submitted –

• notice is issued to the next kin of the
  deceased
• a public notice is also published for the
  general public

The notice is issued to
file objections to the grant of probate in favour of the executor named in the
Will.

If no objections are filed, probate is issued. If objections are filed, application is contested. The parties lead evidence, and the case is decided accordingly.

Read More: How to register a Will?

Time limit:

There is no time limit
to file for probate. But unnecessary delay needs to be explained.

The process of
obtaining probate requires a valid Will and possession of certain other documents
to justify the claim. It is advisable to take timely legal advice for the same.