Probate2 min read . Updated: 07 Dec 2010, 12:28 AM IST
What is it?
It is a copy of the will of a deceased person which has been certified under the seal of a court having the competent jurisdiction. The jurisdiction to probate a will lies concurrently with high courts and district courts. Once a probate is granted by the competent court, the will is validated and can be then executed by the executor. A probate is granted to the executor implied in the will, if there is no executor then the court grants a probate on the beneficiary’s demand and appoints an executor to execute the will on behalf of the beneficiaries. 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 that may be prescribed by state government rules.
The beneficiary or the executor has to approach the court within whose jurisdiction the matter falls by filing a petition. The petition generally mentions the relation of the petitioner with the deceased, the time of the testator’s death, the assets he has left behind and the details of legal heirs and other beneficiaries. The petition is supported by attaching a copy of the last will that is to be probated, the death certificate of the testator and a supporting affidavit of at least one witness. On receipt of the petition, the court issues a notice to the relatives of the testator so that they can file objections, if any. A general notice is also published in a newspaper.
If the will is not contested, then the petitioner has to prove that the testator is dead by producing a death certificate and that the will is valid. The court then grants the probate.
Is it compulsory?
Succession law is included in the state list in the Indian constitution. Thus, the regulations pertaining to a probate are different in every state. A probate is not compulsory in all states.
For Hindus, Buddhists, Sikhs and Jains, a probate is compulsory if the will is made in West Bengal, Bihar, Jharkhand, Orissa and Assam and territories subject to the ordinary original civil jurisdiction of Bombay and Madras high courts. It is also applicable to Parsis if immoveable property is situated within the limits of the high courts of Calcutta, Madras and Bombay. If the will is made outside these regions but bequeaths immoveable property, which is located in any of the specified places, then a probate is compulsory. For a will made outside these places, a probate is not required even if it includes immoveable assets as long as the property is not located in any of the specified regions.
What it costs?
Apart from the lawyers’ fee, the courts levy 2-8% of the value of the assets. However, the upper limit is usually fixed. For instance, in the Bombay high court, the maximum fees is Rs75,000. A simple uncontested will takes about five to seven months to be probated.