How to Obtain a Probate Certificate

A will is a written document that has been signed and validated by the testator outlining his wishes for the distribution or disposal of his possessions upon his passing. The testator or testatrix is the person who makes the will and it can only be reversed while they are still alive.

“A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the testator’s estate” is what the Indian Succession Act, 1925, defines as probate.

The individual who creates a will gives specific people mentioned in the will access to his or her wishes after death; these people are known as executors of the will.

Only the will’s executor may be given probate. If the will is for real estate in several states, it is required. Probate is definitive evidence that the will is authentic, was executed legally and represents the last wishes of the deceased.

What are the circumstances under which probate is mandatory?

When all of the following circumstances are met, probate is required by the Indian Succession Act of 1925:

• A will that falls inside the boundaries of the West Bengal state and the Chennai and Mumbai metro areas.
• A Hindu, Jain, Sikh or Buddhist living in the states of West Bengal, Chennai or Mumbai makes the will.
• The Will addresses both immovable and moveable property located in Mumbai, Chennai or West Bengal.

Probate is not required in every other situation, but it is recommended in situations where there is a chance that the will’s validity will be contested in the future for any reason.

Requirement of Probate of Will in India

In India, the jurisdiction and state-specific rules determine whether a will needs to be probated. The Indian Succession Act, 1925, which applies uniformly to all Indian nationals regardless of their religion, governs probate regulations. 

The following are important details about a will’s need for probate in India:

1. Compulsory in Some States: Probate is mandatory in some states to validly execute or enforce wills. These wills must be filed with the court for probate and must obtain court approval to be effective. Usually, this requirement is necessary for wills on immovable properties, that is, lands and houses.

2. Optional in Some States: In some states, however, probate may sometimes be left at the discretion of the executor or beneficiaries with regard to a will. Their prerogative would then be either applying for or not applying for probate. Other disputes cause legal implications, probate validates the genuineness and due genuineness of the will. Oftentimes, bequests are likely to give rise to actual transactions due to property interests in tangible and physical assets.

3. Exemption of Probate: Exemptions from such mandatory probate requirement are also provided. An example of this would be having either wholly movable assets or estates of the deceased, like bank accounts, securities or personal items, which may not need to be probated but usually passed to the legal heirs through the process of “Succession Certificate” or “Letter of Administration.” 

4. Power of Jurisdiction: The probate is granted with the jurisdiction of the District Court or High Court, depending on the value and nature of assets. 

5. Process: The executor or any other interested party will have to file a petition in the appropriate court to take probate. Next, the court will examine and ensure that the will meets all legal requirements and that the executor is correctly appointed.

If everything is okay the probate will be granted affirming the authenticity of the will and allowing the executor to administer the estate. 

6. Challenges and Disputes During the Probate: Such parties might, though, then and there, in the process of granting probate, which means eidolates may raise pleas or may assert claims against the wishes by the decedent.

Benefits for Probate of Will

A will’s probate offers a number of advantages that guarantee a fair and efficient transfer of a deceased person’s assets while giving everyone concerned legal protection. 

1. Legal Validity: The will’s legal validity is established through probate. The document is examined by the court to make sure it satisfies all legal criteria, including being witnesses and properly signed. This procedure aids in avoiding disagreements and objections to the will’s validity.

2. Executor’s Authority: A personal representative or executor is chosen by the probate process to manage the estate. The court has given this individual legal authority to execute the deceased’s intentions and manage the will’s wealth distribution.

3. Protection of Creditors: Probate offers a way to locate and inform creditors of the death of the decedent. This shields the estate from future creditor claims by guaranteeing that valid debts are paid off before the assets are given to beneficiaries.

4. Asset Protection: The deceased’s assets are protected until they are distributed during probate. This lowers the possibility of asset theft or poor management by preventing unauthorized access to or disposal of assets.

5. Dispute Resolution: Probate offers a venue for settling disagreements or difficulties that might come up in relation to the will or asset distribution. The court will base its ruling on the relevant statutes after hearing objections from interested parties.

6. Transferring Real Estate Title: Probate is frequently required to give the beneficiaries title to immovable property, such as a home or piece of land, if the will contains such property. The order from the probate court is proof of the ownership transfer.

7. Finality and Closure: The distribution of the deceased’s estate is given a sense of closure through probate. The beneficiaries can rest easy knowing that the assets have been allocated in accordance with the terms of the will when probate is finished.

8. Beneficiary Protection: Probate guarantees that the beneficiaries get the inheritance that is rightfully theirs under the terms of the will. Additionally, it shields them from possible deception or improper influence that could otherwise change how assets are distributed.

9. Public Record: The distribution of the estate is made public through probate, which can help with transparency and fraud prevention. 

Checklist for Probate of Will

To make sure that all required actions are performed and that crucial documents are obtained throughout the probate procedure, a will probate checklist can be a helpful tool. A thorough checklist to help you navigate the probate process is provided below: 

1. Obtain the Original Will: The probate process will require the original copy of the deceased’s will, so find it. Retrieve the will if it was kept in a safe deposit box, with a bank or with an attorney.

2. Death Certificate: As it will be needed for a number of legal and financial issues, get several copies of the death certificate.

3. Determine and Inform Heirs and Beneficiaries: Make a list of every heir and beneficiary included in the will. Inform them of the passing and their responsibilities during the probate procedure.

4. Executor or Personal Representative: Determine who is listed in the will as the executor. Ascertain who will function as the estate’s personal representative in the event that no executor has been chosen or that the appointed individual is unable to do so.

5. Consult an Attorney: To ensure compliance with all legal requirements and to gain an understanding of the particular probate laws and processes in your jurisdiction, seek legal advice from a probate attorney.

6. File the Will with the Probate Court: To start the probate process, send the original will to the relevant probate court with the necessary paperwork.

7. Petition for Probate: Draft and submit a formal request to the court to acknowledge the validity of the will and designate the executor or personal representative.

8. Notice to Interested Parties: To provide interested parties a chance to contest the will if needed, publish a notice of the probate proceedings in the local newspaper or notify them directly.

9. Asset Inventory: Make a thorough list of all the deceased’s possessions, such as bank accounts, real estate, investments, personal items and other items.

10. Asset Valuation: To ascertain the fair market worth of valuable items, such as jewelry, collectibles and real estate, get expert appraisals. 

11. Pay Taxes and Outstanding bills: Determine and pay off any unpaid bills, such as credit card balances, mortgages, loans and burial costs. Compute and pay any necessary estate taxes as well.

12. Bank Accounts and Investments: To manage financial transactions and transfer any money from the deceased’s investments or accounts to the estate account, open an estate bank account.

13. Manage the Estate: As the personal representative or executor, oversee the estate’s assets, keep thorough records of all transactions and prepare thorough income and expense reports. 

14. Final Tax Returns: Compile and submit the deceased’s last income tax return and, if relevant, their estate tax return.

15. Asset Distribution: In accordance with the terms of the will, divide the residual assets to the beneficiaries after all obligations, taxes and fees have been covered.

16. Final Accounting and Closing: Compile a final accounting of the estate’s dealings and submit it for approval to the court. Request that the probate matter be closed when the court has approved the accounting.

17. Obtain Releases and Receipts: To verify that beneficiaries have acknowledged the distribution, get their releases and receipts once they receive their portion of the estate. 

18. File Closing Documents: To formally end the probate process, submit the required closing documents to the probate court. 

Probate Application Format

[Court Name]
[Court Address]
[City, State, ZIP Code]

Date: [DD/MM/YYYY]

To,
The Honorable Judge,
[Name of the Court],
[Address of the Court],
[City, State, ZIP Code].

Subject: Application for Grant of Probate of the Last Will of [Deceased’s Full Name]

Respected Sir/Madam,

I, [Applicant’s Full Name], son/daughter of [Father’s Name], aged about [Age] years, residing at [Applicant’s Address], hereby submit this application for the grant of probate of the last will and testament of [Deceased’s Full Name], who passed away on [Date of Death], at [Place of Death].

1. Details of the Deceased:

• Name: [Deceased’s Full Name]
• Date of Birth: [Deceased’s Date of Birth]
• Date of Death: [Deceased’s Date of Death]
• Address at the time of death: [Deceased’s Address]
• Nationality: [Nationality of the Deceased]

2. Details of the Applicant:

• Name: [Applicant’s Full Name]
• Relationship to the Deceased: [Relationship]
• Address: [Applicant’s Address]
• Occupation: [Occupation of Applicant]

3. Details of the Will:

• Date of Execution of the Will: [Date]
• Testator: [Deceased’s Full Name]
• Executor(s) Named in the Will: [Executor’s Name(s)]
• Nature of the Will: [Original Will or a Copy]

4. Facts Supporting the Application:

• The testator, [Deceased’s Full Name], made and executed the last will on [Date] and the same was duly signed by the testator in the presence of two witnesses.
• The original will is in the custody of [Name of Custodian, if applicable].
• The testator has not revoked or altered the will in any manner since its execution.
• The testator was of sound mind and body at the time of executing the will.
• No other will or testament has been found or presented that revokes or supersedes this will.
• The applicant is entitled to apply for the grant of probate as the [executor/beneficiary/relative] under the will.

5. Documents Submitted:

• Original Will or a Copy of the Will (Annexure A)
• Death Certificate of the Deceased (Annexure B)
• Proof of Identity of the Applicant (Annexure C)
• Proof of Address of the Applicant (Annexure D)
• Affidavit of the Applicant (Annexure E)
• Witness Statements (if applicable)
• Any other relevant documents

6. Prayer for Relief: In view of the above, I humbly pray that this Honorable Court may be pleased to:

1. Grant probate of the last will and testament of [Deceased’s Full Name].
2. Appoint [Executor’s Name] as the executor of the will.
3. Issue any other order that this Honorable Court deems fit and proper in the interest of justice.

Date: [DD/MM/YYYY]
Place: [City/Location]

[Signature of the Applicant]
[Full Name of Applicant]
[Address]
[Contact Details]

Process Of Obtaining Probate Certificate

Depending on the value of the deceased’s inheritance, a petition must be filed with the High Court or District Court in India to get probate of a will. The steps are as follows:

File a Probate Petition

Anybody with an interest in the estate, including the executor specified in the will, must submit a probate petition to the court. The following details must be included in the petition:

• The name and address of the deceased
• The date of death
• The value of the estate
• A copy of the will
• The names and addresses of the beneficiaries

Submit Documents

The following paperwork must be submitted by the petitioner with the probate petition:

• Death certificate
• Proof of identity and address of the executor
• Affidavit of witnesses
• Valuation of assets

Court Hearing

After that, the petition will be heard by the court. The court will review the materials and maybe hear witness testimony during the hearing. The court will award probate if it is convinced that the will is legitimate.

Grant of Probate Certificate

A document known as the probate copy will be given to the executor upon the granting of probate. This document serves as official proof of the validity of the will and the executor’s competence to manage the estate. 

Letter of Administration

The primary distinction between a Letter of Administration and Probate is that the former is given to an executor designated in the will. On the other hand, the beneficiaries of the deceased must apply for a Letter of Administration if a will does not name an executor. The beneficiaries would receive the same administrative privileges as an executor under this Letter of Administration. However, in the event of an intestate death, a Letter of Administration is filed by an applicant requesting administrative authority over the deceased estate.

Therefore, the Letter of Administration serves as a helping document in cases where the deceased individual passes away intestate or fails to name an executor in their will. Following their application to a court of law with appropriate jurisdiction, the beneficiaries get a Letter of Administration. A letter of administration gives the administrator all of the intestate’s rights, just as if the administration had been given soon after his passing.

Section 234 of the Act states that the person who would have been entitled to administer the estate in the event that the deceased died intestate may apply for the Letter of Administration if the executor, residuary legatee or representative of the residuary legatee does not exist, declines, is unable to act or cannot be located. Any other legatee with a beneficial interest or a creditor may apply for the Letter of Administration, if applicable, under the same act provision.

Succession Certificate

Without a will, a succession certificate is the main document that allows the heirs to claim a deceased relative’s assets if there is no survivor among the account holders and no nomination has been made by the holder or holders previously. According to the Indian Succession Act, a succession certificate is a document that grants the holder the right to act on behalf of the deceased in order to collect securities and debts owed to him or payable in his name. 

A succession certificate is one that is granted to a deceased person’s heir who hasn’t written a will. To prove the legitimacy of the successor, a succession certificate is granted to the surviving spouse of a deceased individual who has not written a will.

The holder of the succession certificate also has control over the assets and debts of the dead. The certificate holder may transfer the deceased person’s securities and perform the payment of the deceased person’s debts.

Obtaining a Succession Certificate

The district judge of the appropriate jurisdiction issues a succession certificate. A petition must be written and submitted to the appropriate district court in order to receive a succession certificate.

Where the deceased individual typically lived at the time of his death would be the district court’s relevant jurisdiction when submitting a petition for a succession certificate. In the absence of such a location, the applicable jurisdiction would be the area where any deceased person’s property would be located. 

Procedure to Obtain a Succession Certificate

The legal procedure to obtain the succession certificate is highlighted as below:

Step 1: Preparation of Petition

After paying the required court fees, the applicant will draft, confirm and sign a petition before submitting it to the district judge in the relevant jurisdiction.

Step 2: Submission to Court

When the petition is filed, the district judge will give the applicant or petitioner a chance to have a preliminary hearing. If the petition is accepted, he will schedule a final hearing date and notify anybody he deems appropriate.

Step 3: Grant of Certificate

Following a hearing with all parties involved, the judge will determine if the applicant is within his rights to ask for a succession certificate and, if so, will give it to him.

Step 4: Submission of Bond

In order to cover any potential losses resulting from the use or abuse of such a certificate, the district judge may further demand that the applicant post a bond with one or more sureties or any other security.

Note: Any debt or security that was left out of the first application may potentially be eligible for an extension from the district court. 

Validity of Succession Certificate

Anywhere in India, the succession certificate is valid. The certificate will only be valid if it is properly stamped in compliance with the Court Fees Act, 1870 and will have the same effect in India as a certificate issued in India. This is the case when the certificate was issued in a foreign country by an Indian representative (appointed by the government) accredited to that state. 

Effect of the Succession Certificate

This certificate’s primary goal is to safeguard all parties making debt payments when they are done so in good faith. Additionally, the certificate holder has the authority to negotiate or transfer the securities specified in the certificate, as well as to receive any interest or dividends on the securities. As a result, all payments made to the certificate holder on the deceased’s behalf will be accepted under the law.

This does not imply, however, that the holder of the certificate is the legitimate heir or the owner of the securities. A different legal process determines the legal heir or heirs. 

When to Apply for Probate of Will?

The laws of the particular jurisdiction and the estate’s circumstances determine whether it is suitable to petition for probate of a will. Applying for probate as soon as the testator (the person who made the will) passes away is generally advised.  

Here are some key factors to consider when deciding when to apply for probate:

1. Prompt Action: It is generally advantageous to apply for probate as soon as possible since this helps start the legal procedure earlier and makes it easier to administer the estate in a timely manner.

2. Validity of the Will: It is essential to confirm that the will is legitimate and complies with all legal criteria prior to submitting an application for probate. It is crucial to obtain legal counsel from a probate attorney if there are any questions regarding the will’s legitimacy or authenticity.

3. Notification of Beneficiaries: Explain the testator’s death and their responsibilities during the probate process to the beneficiaries listed in the will. Delays and misunderstandings can be avoided with early communication. 

4. Asset Inventory: Compile a thorough list of the deceased’s assets and obligations prior to requesting probate. The probate procedure will go more smoothly if this information is available.

5. Executor Identification: Determine who the will appoints as the executor or personal representative. Choose a personal representative and get their approval if no executor is chosen or if the designated individual is unable or unwilling to serve.

6. Potential disagreements: Getting legal advice prior to requesting probate might assist foresee and resolve any potential disagreements among beneficiaries or challenges to the validity of the will. 

7. Estate Complexity: Take into account the intricacy of the assets and the estate. To collect the required paperwork and finish the probate process, some estates can need extra time and work.

8. Creditors and bills: Determine and settle any unpaid bills that the deceased may have due. To safeguard the estate and guarantee a seamless transfer of assets to heirs, these debts must be settled prior to submitting an application for probate.

9. Jurisdictional Differences: Know if the applicable jurisdiction has any particular waiting periods or deadlines for submitting an application for probate. Rules and deadlines for probate applications may differ by area.

List of Documents Needed for Probate of Will

In India, the following paperwork is needed to apply for a will’s probate:

• Original will
• Death certificate
• Proof of identity and address of the executor
• Affidavit of witnesses
• Valuation of assets

Who Can Apply for a Probate?

The executor or personal representative specified in the will itself is usually the person who may request a probate of a will. After their death, the testator (the person who created the will) appoints this person to manage the estate and carry out the directives stated in the will.

The following are important details regarding who is eligible to petition for a probate: 

1. Executor or Personal Representative: In the will, the testator names an executor who will oversee the probate procedure and manage the estate. In order to guarantee that the deceased’s desires are carried out, obligations are paid off and assets are allocated to the beneficiaries in accordance with the terms of the will, the executor’s job is essential.

2. Will Nominee: The primary authority to request a probate is vested in the individual designated as the executor or personal representative in the will. To assume this role, the nominee needs to be a mentally capable adult.

3. Alternate Executor: In certain situations, if the principal executor is incapable or unwilling to carry out the duties, the testator may designate a replacement or alternate executor. The alternate executor may apply for probate in the event that the primary executor is unable to do so.

4. No Executor Named: The court may designate an administrator or personal representative if the will does not name an executor or if the named executor is incapable or unwilling to carry out their duties. Depending on the situation, the court-appointed administrator could be a professional administrator or a family member. 

5. Previous Executors or Administrators: The court may take into account prior executors or administrators when deciding who is eligible to petition for probate if the dead died intestate (without a will) or if they had a prior will with a different executor specified.

Probate Certificate Fees

To issue a probate, the court may charge a fee equal to a percentage of assets. For instance, a court fee of Rs 25 is required in Maharashtra for assets under Rs 50,000, 4% for assets between Rs 50,000 and Rs 2 lakh and 7.5% for assets beyond Rs 2 lakh. The maximum amount is RS 75,000.

What will be the legal consequences if the Will is not Probated?

In accordance with the Act, a will that is not probated loses its legal sanctity and binding effect.

A succession certificate is not the same as a probate. When a person passes away testate, meaning they have left a will, the court grants probate when the executor or beneficiary requests it. If a person hasn’t left a will, his legal heirs will need to petition the court for a succession certificate, which will be granted in accordance with the relevant inheritance laws. 

How does the Court decide the validity of the Will?

When a petition for the grant of a probate is submitted before the High Court (since it has concurrent jurisdiction) or the Principal Court of Original Jurisdiction, the court must first issue a notice and publish it in a newspaper. Should such a petition be challenged, it is transformed into a standard lawsuit in which the parties would submit thorough arguments and the evidence would be reviewed before the court renders a decision on the Will.

Frequently Asked Questions on How to Obtain a Probate Certificate

Q1. What is probate of a will in India?

Ans1. Probate is a legal process under the Indian Succession Act, 1925, where the court certifies the validity of a will. It ensures the will was legally executed, represents the deceased’s final wishes and appoints an executor to manage the estate.

Q2. When is probate mandatory in India?

Ans2. Probate is mandatory for wills related to immovable property located in Mumbai, Chennai or West Bengal, especially if the testator is Hindu, Jain, Sikh or Buddhist.

Q3. What documents are required for probate of a will?

Ans3. The essential documents for probate include the original will, death certificate, proof of identity and address of the executor, affidavit of witnesses and a valuation of the deceased’s assets.

Q4. How long does it take to obtain a probate in India?

Ans4. The time to obtain a probate depends on factors like court workload, asset complexity and disputes, but it typically takes 6–12 months if no major objections are raised.

Q5. Can a beneficiary apply for probate if no executor is named in the will?

Ans5. Yes, a beneficiary can apply for probate if no executor is named in the will or if the named executor is unwilling or unable to act.

Q6. What is the difference between a probate and a succession certificate?

Ans6. Probate validates the will and appoints an executor to administer the estate, while a succession certificate grants legal heirs the authority to manage debts and securities in the absence of a will.

Q7. How is a probate application filed in India?

Ans7. To file for probate, submit a petition to the appropriate District or High Court along with required documents such as the original will, death certificate and a list of beneficiaries. The court will review the case and issue the probate if all criteria are met.

Q8. What happens if someone contests the probate of a will?

Ans8. If the probate of a will is contested, the court will conduct hearings, examine evidence and rule based on the law to determine the will’s validity. This may delay the probate process.

Q9. Do all wills require probate in India?

Ans9. No, not all wills require probate. For instance, wills dealing with movable assets like bank accounts and personal belongings often do not require probate.

Q10. What are the benefits of obtaining a probate for a will?

Ans10. Obtaining probate ensures legal validity of the will, grants authority to the executor, protects beneficiaries and creditors and resolves disputes about the deceased’s estate distribution.