Mandatory probate on Will removed but it is still a smart move for inheritance

The change means that beneficiaries in Mumbai, Chennai, and Kolkata no longer have to mandatorily get a probate and can now act on a valid Will. This was earlier mandatory for Hindus, Sikhs, Jains, Buddhists and Parsis if the Will was executed in these cities or covered property located there.

“This was a colonial-era rule that had outlived its purpose and created unequal treatment across cities," said Shweta Tungare, co-founder of LawTarazoo. “Two families with identical estates faced very different legal processes purely because of geography."

Rishabh Shroff, partner and co-head of private client at Cyril Amarchand Mangaldas, added that probate delays of over a year were common in Mumbai. “Why should a widow or child wait that long to access family assets, for no fault of theirs? This reform removes an outdated bottleneck."

The amendment does not abolish probate altogether. What has changed is that it is no longer compulsory in Mumbai, Kolkata, and Chennai for certain communities and has become optional.

Faster inheritance, fewer court visits

Earlier, even families with no disputes were forced into a legal process that involved filing petitions, issuing public notices and waiting months for court orders, said Shraddha Nileshwar, head-Will and estate planning at 1 Finance.

Tungare agreed and added that simple successions were routinely delayed by six months to over a year, during which bank accounts and property transfers remained stuck. “Additionally, legal fees and court charges eat into the inheritance value."

With the mandate removed, heirs can now approach banks, registrars and housing societies with the Will, death certificate, KYC documents, and indemnities, as is done in most parts of the country.

Why probate may still be required

Even though probate is no longer mandatory, experts stress that it remains an important safeguard in several situations, especially where the Will is likely to be questioned.

Probate is the court’s formal confirmation that a Will is genuine and that the executor named in it has legal authority to distribute the estate. There are many situations in which you may need this legal stamp from the court.

One, probate is strongly advisable when the Will makes what the law considers an “unnatural" disposition, said Adhiraj Harish, partner, D.M. Harish & Co. This means that the Will sidelines legal heirs and distributes the estate in a manner not as expected. “Say, a person leaves behind a spouse and children but leaves most of the estate to a sibling or friend, that can raise doubts and invite objections. In such cases, probate protects the beneficiary by confirming that the Will was validly executed."

Second, probate is useful when assets are spread across different states. “Administrative practices vary widely across states, and local authorities may hesitate to rely on an unprobated Will executed elsewhere," said Nileshwar.

Say a Mumbai resident owned a flat in Mumbai and ancestral land in Karnataka. A probated Will obtained from a competent court reduces friction when transferring the Karnataka property. “Local officials are more comfortable relying on a court order than independently examining the Will and witnesses," Nileshwar added.

Third, cross-border inheritance makes probate even more relevant. This holds true in both cases, where the heir is an Indian inheriting a foreign estate and the vice-versa case of an NRI heir inheriting Indian property.

“For NRIs, probate remains the golden ticket for cross-border asset management," said Tungare. Repatriation of inherited money or sale proceeds of inherited assets can become difficult without probate. “Foreign banks and authorities often do not recognize a simple Indian Will without a court seal," she added.

When NRIs try to remit proceeds from property sales or investments, both Indian and foreign banks apply strict compliance checks. Probate removes ambiguity about ownership and source of funds and reduces the risk of delays or rejections. Tungare strongly advises NRIs to still opt for probate even if the mandatory requirement is removed. “It acts as a globally recognized certificate of title, ensuring that their inheritance isn't questioned by foreign tax authorities or compliance departments."

Finally, if family disputes or challenges to the Will are likely, getting a probate acts as an important safeguard, said Shroff. “For large estates with multiple assets, the absence of probate does not stop a disgruntled family member from questioning the Will on grounds such as fraud or coercion by the testator."

Banks may still ask for probate

Banks, depositories and mutual fund houses often demand a probated Will to establish rightful heirs. Even with the mandatory requirement removed, they may still ask for it for institutional caution. Banks, financial institutions, and housing societies operate under internal risk and audit policies.

Nileshwar said institutions may still insist on probate in high-value or sensitive cases. “From their perspective, a court order reduces liability if another heir later surfaces and disputes the transfer."

Even in Mumbai, Chennai, and Kolkata, banks can no longer cite Section 213 as a legal reason to demand probate, but they may still act cautiously in high-value cases or where the Will appears unclear or disputed, said Tungare.

Harish also pointed to overlaps with other laws. “Under the Maharashtra Co-operative Societies Act, 1960, a housing society can transfer a deceased member’s property based on documents such as a Will, succession certificate or legal heirship certificate. Therefore, in cities like Mumbai, the heirs would still be required to obtain a probate to enable the Society to transfer the flat ownership."

Until such rules are aligned with the amended succession law, beneficiaries may continue to face practical demands for probate even where it is no longer legally mandatory.

Registering Will not the same as probate

Many people assume that registering a Will offers the same protection as probate, but the two serve different legal purposes. Registration is an administrative step taken during the testator’s lifetime. “It helps establish the existence of the document and reduces allegations of fabrication or suppression, but it does not validate the Will," said Nileshwar.

Registration does not prevent heirs from challenging the Will after death. Its role is limited to improving evidentiary credibility.

Probate, on the other hand, is a post-death judicial process. “The court examines the Will, hears objections if any, and formally confirms its validity, and the authority of the executor," said Nileshwar. “Once probate is granted, it operates as strong legal proof and significantly narrows the scope for future disputes," Nileshwar explained.

In simple terms, registration supports authenticity, while probate conclusively establishes legality.

How to get probate

To obtain a probate, a petition is filed with the appropriate court, typically a high court in metropolitan cities or the district court in other areas. The court then issues notices to legal heirs and publishes public notices inviting objections to the Will.

The petition is filed by the executor, while heirs are respondents, and if they agree with the Will, they only need to submit consent affidavits or no-objection certificates, even from abroad, Tungare explained.

Most procedural steps are handled by lawyers, and the executor may only need to visit the court registry once for formal verification or to sign a bond.

The court fee varies by state and is often charged as a percentage of the estate value. In Maharashtra, it is 2-3% of the estate, capped at around ₹75,000. In Delhi, it ranges from 2.5%-4% on an ad valorem basis—it increases as the value of the estate increases. Lawyer’s fees are extra. In uncontested cases, probate can still take a few months to come through, depending on the court workload.

The repeal of mandatory probate removes an outdated barrier and makes inheritance smoother for families with simple, undisputed estates. But where assets are valuable, spread across states or borders, or likely to be contested, probate still remains the safest way to secure a clear and lasting transfer of wealth.