Applying & Obtaining Probate of a Will in India.

All one needs to know about Will in India.

Procedure for Obtaining Probate

Probate of a Will in Mumbai Chennai & Kolkatta

Probate means copy of the will certified under the seal of a court of a competent jurisdiction. Probate of a will when granted establishes the Will and validates all intermediate acts of the executor. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.

A probate differs from succession certificate. A probate is issued by the court, when a person dies testate i.e. having made a will and the executor or beneficiary applies to the court for grant of probate. in case a person has not made a ‘Will’ his legal heirs will have to apply to the court for grant of a succession certificate which will be given as per applicable laws of inheritance.

Is it necessary to obtain Probate of a Will?

Probate is compulsory in certain Jurisdictions if a person resides in Mumbai, Chennai or Kolkata or has property in these Jurisdictions Probate is compulsory. For others, it is not compulsory but for others also it always recommended to go for probate as the title to the assets is stronger after a probate has been obtained.

To Whom Can Probate Be Granted?

Probate can be granted only to the executor appointed by the will. The appointment may be express or implied by necessary implication.

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 prescribed by the rules made by the State Government.

Persons Eligible For Grant of Letter of Administration

Where the deceased was a Hindu, Muhammadan, Buddhist Sikh or Jain or an exempted person and has died intestate, the court may grant administration of his estate to any person, who according to the rules for the distribution of the estate would be entitled to the whole or any part of such deceased's estate. When several of such persons apply for such administration, it shall be the discretion of the court to grant it to any one of them. When no such person applies, it may be granted to a creditor of the deceased.

Letters of administration entitle the administrator to all rights belonging to the intestate as effectively as if the administration has been granted at the moment of his death.

For obtaining a letter of administration the beneficiary must apply to the court. The court on receiving satisfactory proof of valid execution of the will issues letter of administration to the beneficiary.

The application for letter of administration must contain the following details:

1. the time of the testator's death
2. that the writing annexed in his last will and testament
3. that it was duly executed
4. the amount of assets which are likely to come to the petitioner's hands,
5. and the petitioner is the executor named in the will

Succession Certificate

The succession cases, where the properties are situated in India, where the deceased did not domicile to any foreign country, succession procedures are governed by Hindu law, Hindu Minority and guardianship Act, Indian succession Act, Special marriage Act, Muslim Personal Law etc.

Particularly the Banks and Financial Institutions require succession certificate issued by an appropriate court, if the deceased did not specify any nominee in the bank or financial institution, to entertain any claim from the legal heirs.

The Succession certificate is issued under S.123 of the Indian succession Act by the courts having relevant Jurisdiction. The process takes about 1 year time if all the required documents are produced along with the application. If any one of the legal heirs contests the case, then it might take more time.

Procedure for Obtaining Probate

A petition for probate must be filed in court along with the will in question.

It should contain the following facts.

1. the time of the testator's death
2. that the writing annexed in his last will and testament
3. that it was duly executed
4. the amount of assets which are likely to come to the petitioner's hands, and
5. the petitioner is the executor named in the will

The application for probate shall be signed and verified by the executor or beneficiary.

The petitioner shall furnish a blank stamp paper of value equal to the requisite court fee, along with the application. The court shall grant the probate on the said stamp paper.

After receipt of the petition, the court issues notice to the next of kin of the deceased to file their objections, if any, to the grant of probate.

A general public notice is also given in a newspaper.

The petitioner is thereafter asked to establish the:

1. Proof of death of the testator
2. Proof that the will has been validly executed by the testator
3. Will is the last will and testament of the deceased.

For the purposes of filing the Petition in India, it will be necessary for the executors who is not based in India to give a Power of Attorney in favour of someone in India.

On the satisfaction that the will in question has been validly executed the court will grant probate to the executor named in the will.

Nexgen offers Legal Assistance to obtain Probate, Letter of Administration or Succession Certificates.

Call our team on 9599799018 or mail us on support@nexgentransfer.com

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