Home / Money / Personal Finance /  How to apply for a letter of administration

A mother of four died after bequeathing the majority of her estate to one child and the remaining assets to two other children. One of the children has been left out of her Will, which was  properly executed in the presence of the family doctor and chartered accountant and two family friends, as witnesses. 

Except for the child who got a majority of the assets, the other three are upset with this division of property.

The executor of the will, for reasons unknown, insisted that the children settle their differences between themselves before approaching him to file for probate. Later, the executor even tendered his resignation via a WhatsApp message, without naming a replacement.

Under the circumstances, can the major beneficiary of the will apply for a letter of administration with the appropriate court without the signatures of the rest of the heirs or the executor?

— Name withheld on request

Based upon the facts narrated to us, we understand that the executor has shown his desire to resign from his post on account of differences inter se between the siblings i.e., children of the deceased.

However, an unwilling executor may resign in terms of the rules of the competent court from where the children may seek for probate, or letters of administration, annexed to the will. 

The tendering of resignation by the appointed executor via WhatsApp messages is not in consonance with the provisions of the Indian Succession Act, 1925, which provides for the “Form" of renunciation of executorship by an executor. 

Secondly, the executor’s insistence that the children settle their differences between themselves before approaching the executor to file for probate is not valid under the eyes of law as it would have the effect of dilution of the last will and testament of the deceased person.

 Further, if the will provides for a substitute executor instead of the unwilling executor, only then can the executor name the substitute/alternate executor as stated in the will, and such executor or substitute executor can then make the application for probate. 

 Thirdly, as said above that the resignation of the executor is not as per the provision of law, the beneficiary of will/legal heir who has been bequeather the larger portion of property cannot simply apply for obtaining letters of administration till the executor has renounced the executorship validly. 

However, a suitable application can be prepared by the beneficiary to the competent court for the purposes of applying for letters of administration attached to the will if the executor does not consent or make a submission in the required “Form“ or does not take appropriate steps to file for probate. 

The service of probate application or letters of administration annexed to the will has to be served officially to all the heirs in terms of the laws of succession applicable to the deceased despite the legal heirs not consenting to the signing of the probate or letters of administration application.

Aradhana Bhansali is partner, Rajani Associates.

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