Understand the Difference Between Section 276 and Section 278 of the Indian Succession Act

If you are looking to enjoy the share of your father’s property or any other ancestral property then you must be wondering about the procedure, the documents that you Will be required and most importantly whether as per your situation, you should require to proceed with Probate or Letters of Administration. So, let’s find out about both these sections of the Indian Succession Act in detail and draw a comparative analysis between them.

Introduction to Probate 

Section 276 of the Indian Succession Act deals with the term Probate. Section 2(f) of the Indian Succession Act defines Probate as the legal process of validating a deceased’s Will. The Section specifies the procedures and the regulations related to the validation and execution of the Will.

Probate is that legal process with the help of which a Will is authenticated and the Executor is entrusted with the authority to distribute the estate of the deceased person. Under this Act obtaining the Probate is a necessity and it becomes especially necessary in cases involving immovable properties situated in major metro cities such as Mumbai, Chennai and Kolkata. 

With the help of this Act, a foundation for the fulfillment of the wishes of the deceased in a legally systematic and sanctioned manner has been established. The procedure involves the recognition of the Will by a court of competent jurisdiction which confirms that the document presented is the last Will and is genuine. The principles of the Probate maintain uniformity in the principles throughout the country.

Who can apply for Probate?

Probate applications are usually filed by the Executor. An executor is a person who is mentioned in the Will for carrying out and devolving the assets of the deceased to the legal heirs. However, apart from the Executor, a Beneficiary may also bring an application in case where no Executor has been appointed under the Will or if the appointed Executor is unable or unwilling to Act.

Probate cannot be granted to whom?

A Probate cannot be granted to a person who is of unsound mind or a minor. Probate can also be not granted to the association of the individuals under the company if it satisfies the conditions as prescribed by the rules made by notifications in the Official Gazette of the State Government.

What are the advantages of a Probate?

• Establishes the Title to the Property: With the help of a Probate the Executor obtains the authority to distribute the assets amongst the legal heir in the property as defined in the Will. This also enables the legal heirs to establish their clear titles on the property and helps them in the future transactions of the property.

• Avoid Conflicts: This benefit of the Probate is the expansion of the previous point because the devolvement of the assets of the deceased by the Executor as per the wishes of the deceased’s Will helps in combating and minimizing any kind of conflicts that may arise amongst the beneficiaries.

• Compliance with the Laws: The assets of the deceased are distributed by the Executor as per the Indian Laws and before devolving the assets onto the beneficiaries the assets of the deceased are used in the payment of the outstanding amount, taxes and dues of the deceased.

• Management of the Estate: With the help of a Probate the Executor makes sure that the assets are distributed according to the directives of the Will and at the same time develops a framework for the orderly distribution of the assets.

Requirement of Probate 

We have already understood the concept of Probate  in a better way now the most important question that requires attention is the scenarios where obtaining Probate  becomes essential and these are:

• If the Will is made by A Buddhist, Sikh, Hindu, Parsi or Jain in the Utes such as Chennai, Mumbai and Kolkata.

• If the Will involves immoral property situated in any of the above-mentioned states.

• If there is any dispute amongst the legal heirs or the beneficiaries of the deceased.

What are the Essential Documents required for a Probate Application?

For presenting an Application to the Court (the process of which has been discussed in detail) the beneficiary presenting an application must carry the below-mentioned documents with them:

• Will: The Beneficiary is required to carry a copy of the original Will with themselves or Codicils (if any). Codicils are the amendments to the Will and the beneficiary is required to carry all these documents with them.

• Death Certificate: The second most important document after a Will is the death certificate of the testator which the beneficiary is required to carry with them to proofing the necessity of obtaining the Probate.

• List of all the Legal Heirs and the Assets: The Probate application shall also consist of the names of all the legal heirs and the beneficiaries of the Will along with the corresponding assets of the deceased.

What is the process of filing a Probate application?

• Preparation of the documents: The first step in the process of filing an application for Probate is to gather and prepare all the necessary documents. The list of these documents includes all the above-mentioned documents.

• Filing of the Application: The next step in the process is to file the Probate application in the appropriate Court. It is very crucial and important that the application is prepared with utmost care as it involves very important aspects related to the Will, assets of the deceased, the list of the beneficiaries, etc.

• Declarations: Declarations and Affidavits are often required in some cases to support the application and these Declarations and Affidavits provide an additional layer of authentication.

• Determination of the jurisdiction: The beneficiary filing the application for Probate is required to identify the competent court for filing the application. The Court is chosen on the basis of the geographical location of the assets and the last residence of the testator before their death.

• Submission of the Application: After the submission of the Probate application the court is required to review the application and the genuineness of the application.

People Also Read: How to obtain Probate Certificate in India?

What are the Roles and Responsibilities of an Executor?

• Collection of the Assets: The most important function of the Executor is to safeguard and collect all the assets of the deceased.

• Paying off the Debts: Before the distribution of the assets of the deceased it is very much imperative that the Executor shall ensure to pay off all the debts and liabilities of the deceased.

• Distribution of the Assets: The Executor is required to distribute the assets of the deceased amongst the legal heirs in accordance with the applicable laws.

• Maintenance of Transparency: An Executor is also required to maintain the proper account of the transactions to ensure transparency amongst the legal heirs.

Introduction to Letters of Administration

Section 278 of the Indian Succession Act states that a Letter of Administration is a legal document that is issued by the courts when a person dies intestate. This document comes into play to manage and distribute the assets of the deceased. Letter of Administration is issued to one or more individuals which grants them the authority to administer the estate of the deceased.

The main function of this document is to enable the Administrator to resolve all the issues related to the estate of the deceased, pay off all the debts of the deceased and then lastly distribute the remaining assets of the deceased to all the legal heirs.

The jurisdiction of appointing an Administrator lies with the District Court or the High Court of the permanent place of the residence of the deceased but if the deceased owned different assets in different districts then separate applications will be required for each asset.

Letter of Administration cannot be granted to whom?

Letter of Administration cannot be granted to a person who is of unsound mind or a minor. Letter of Administration can also not be granted to the association of the individuals under the company satisfies the conditions as prescribed by the rules made by notifications in the Official Gazette of the State Government.

Documents required for Letter of Administration

• Death Certificate: For filing the application for a Letter of Administration the applicant must carry a copy of the death certificate of the deceased to prove the fact and the date of the death.

• List of all the Legal Heirs and the Assets: The application for Letter of Administration shall also consist of the names of all the legal heirs and the beneficiaries along with the corresponding assets of the deceased.

• Affidavit: An affidavit is required to be submitted with the application that states the deceased has died intestate.

The Process of filing an application for a Letter of Administration

• Filing of the Application: The first step in the process is to file the application in the court. The application should be filed by the close relative of the deceased. In the case where no close relatives are available, the application can also be filed with the distant relatives’ belt with the permission of the Court. The application must be accompanied by the above-mentioned documents.

• Publication of the Notification: As soon as the applicant submits the application to the court it is the duty of the court to ensure transparency and at the same time to give an opportunity to others to contest the application and this is why the courts are duty bound to invite the objections by way of publication of the notice in one or more local newspaper.

• Hearing of the Court: After the publication of the notification and the expiry of it a court hearing is scheduled where the judges review the application in light of any objections raised. The court also assesses whether the applicant is apt and has the legal-sounding to administer the assets of the deceased.

• Issuance of the Letter of Administration: If there are no objections and the court is satisfied with the application men they may go ahead with issuing the letter.

What are the Roles and Responsibilities of an Administrator?

• Collection of the Assets: The most important function of an Administrator is to safeguard and collect all the assets of the released.

• Paying off the Debts: Before the distribution of the assets of the deceased it is very much imperative that the Administrator should ensure to pay off all the debts and liabilities of the deceased.

• Distribution of the Assets: Lastly, the Administrator is required to distribute the assets of the deceased amongst the legal heirs in accordance with the applicable laws.

What are the applicable Costs and Fees for Letters of Administration?

There are basically three types of fees payable for obtaining the Letter of Administration:

• Court Fees: The court fees are payable and depend on the value of the property. The below tabular representation gives us an idea of the payable Court Fees 

Value of the Property	Payable Court Fees
1 Lakh – 10 Lakh	2.5% of the Value of the Property
10 Lakh – 50 Lakh	3.25% of the Value of the Property
Above 50 Lakh	4% of the Value of the Property

• Legal fees: This fee is payable if any services of a lawyer have been availed off

• Bond fees: If the court requires payment by the Administrator of a bond fee as a security.

The Difference between Section 276 and Section 278 of the Indian Succession Act

Points of Distinction	Probate	Letters of Administration
Section of the Indian Succession Act	The procedure of making an application for Probate is defined under Section 276 of the Indian Succession Act	The procedure of making an application for a Letter of Administration is defined under Section 278 of the Indian Succession Act
Circumstance of Filing	An application for Probate is filed in the case where the deceased dies after making a Will	An application for Letters of Administration is filed in the circumstance where the deceased dies intestate and leaves no Will
Filing of the Application	An application for obtaining a Probate is usually filed by the Executor himself	An application for Letters of Administration is filed by any close relative of the deceased
Appointment of the Authority	There is no authority issued by the Court in the case of a Probate. The name of the Executor is already defined in the Will	The Court appoints the Administrator of the property
Applicable Laws	The rules of the Will are followed for the distribution of the assets amongst the Legal Heirs	The rules of the Succession Laws are applicable in the distribution of the assets of the deceased.

Conclusion

Section 276 and Section 278 of the Indian Succession Act work upon the principles of the devolution of the assets of the deceased in the case where they have left a Will and in the case where they have not. Probate or Letters of Administration is always required to avoid any probable legal complications and conflicts amongst the legal heirs.

Frequently Asked Questions On Difference Between Section 276 and Section 278 of the Indian Succession Act

Q1. What is the difference between Probate and Letters of Administration in India?

Ans 1. The main difference between Probate and Letters of Administration is that Probate is granted when the deceased dies by leaving a Will and Letters of Administration are issued when the deceased dies intestate.

Q2. Can a daughter claim father’s property after 20 years?

Ans 2. No, because as per the limitation Act a legal heir can make A claim for 12 years only.

Q 3. What is the difference between succession and survivorship?

Ans 3. Succession is applicable on the ancestral properties while survivorship is applicable on the self-acquired property.

Q 4. What is the time limit for property transfer after death?

Ans 4. As per the limitation Act the legal heirs of the deceased are required to file the claim within 90 days.

Q 5. Who has disqualified heirs for succession?

Ans 5. The persons who have either committed or abet the commission of the murder Will be disqualified legal heirs for applying for succession.

Q 6. What is the difference between Probate and Succession?

Ans 6. The concept of Probate comes into play when the deceased has left a Will and the concept of succession comes into play when the deceased dies intestate.

Q7. Is Probate necessary for a registered Will?

Ans 7. Yes, Probate is necessary for circumstances that involve the immovable property that is situated in Mumbai, Chennai or Kolkata. 

Q 8. What is the difference between succession and inheritance?

Ans 8. Inheritance is the process of transferring the assets and the properties of the individuals to their legal heirs on the other hand succession is a concept of transferring the ownership and leadership of the business

Q 9. What is the maximum court fee for succession?

Ans 9. The maximum court fee for obtaining a succession certificate is Rs. 50,000.

Q 10. How long a property Will is valid after death?

Ans 10. There is no time limit regarding the validity of the Will. A Will cannot be cancelled suo-moto.