How to apply for probate of will


September 9, 2021, 1:59 pm | Updated November 7, 2022, 6:11 pm IST
How to apply for probate of will
Will is an important testamentary document through which a person who wishes to transfer his real estate can be done effectively and in an easy manner. Once the will has been written and post the death of the maker of the will, the will must be presented to the court for authentication and approval. This is called probate of will.
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Table of Contents

What is a will?

A will is a written document through which a person tries to consolidate all his properties at one place and alienates or transfers to his family, relatives or loved ones as per his desire and wish. It is the simplest mechanism to transfer the property from one generation to other without involving much legal complexities and hassles. In simple words, a will specifies the desire of a person, (the testator) who intends to wilfully distribute his property or assets according to his desire, after his death.

While, making the will in India by a Hindu, Buddhist, Jain or Sikh, the provisions as mentioned under the Indian Succession Act 1925 has to be followed and abided by in every aspect. The Mohammedan are not governed by the Indian Succession Act, 1925.


Will is defined in the Section 2(h) of the Indian Succession Act 1925 as "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."


As per the above definition it is clear that that through a will a person declares his intention related to his property and what effects should be taken on those property after his death.


When a will becomes operative?

Quite interestingly during the lifetime of the make of the will, it is a defunct document and becomes operative only after the death of the maker. A maker of the will can change the will as many times as he wants and the last made will before his death will be considered as the final will and all wills before that would be considered as null and void. Any additional note made to a will is called CODICIL.


What is probate of a will?

Most of us have this notion that if our names are mentioned in the will then the property will automatically will be transferred to us but it does not happen that way. Even when the names of the legatees/beneficiary are mentioned in the will the legatees cannot own and enjoy the property without the intervention of an appropriate court. Let us try to understand the mearing of probate.


Probate as defined under Indian Succession Act,1925 Section 2(f), “means copy of the WILL certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.”

When Probate is granted by the Court having territorial jurisdiction it could be considered that WILL and acts of the executor of WILL are valid. It is an evidence which proves validity and execution of WILL as well as proves that person making WILL was having valid testamentary capacity to create that will. Probate is a process of judiciary through which the authenticity of a WILL is determined by court. Once probate is complete all the properties can be transferred as desired in the WILL. 


How to Probate a will?

Applying for grant of probate to a competent court is called “probate after death of the testator of WILL”. To probate a will, you have file petition for probate of will. Petition for probate is also called testamentary petition and it could be filed in the court though probate lawyer/probate solicitors/ wills and estates lawyer/probate law firms who provides probate service. After death of the testator its duty of the executor of estate to appoint Probate Lawyer and proceed for probate of WILL. One can find lawyers in Mumbai. Chennai, Delhi and Kolkata who are experts in applying for probate of will at the appropriate court depending on jurisdiction.


 In probate court process probate lawyers need to prove that WILL has been validly executed by testator, and the said WILL is last will of the deceased. A will probate lawyer must ensure that the will which is going for probate is the last drafted will of the testator and also verify if there are any codicils or not, which can give a different connotation and meaning to the will.


 Let’s understand will probate process and probate steps.

A) Petition for probate of will

The testamentary petition has to be filed in the competent court having pecuniary jurisdiction. Usually, the probate petition will be filed at Lower court but in case you have high value of the property you may have to approach higher court obtaining grant of probate through a wills and probate lawyers or probate law firms or a good civil lawyer. The jurisdiction will be decided by where is the residence of the testator and what is the value of the property being bequeathed through the will.


B) What documents are required for Probate

In probate litigation court usually asks the petitioner proof of death of the testator but there are some vital documents to be needed as well. Following are the Documents required in probate process –

a.  Death Certificate of the testator.

b.   Aadhar card of the testator.

c.  Ration Card of testator.

d.  Original WILL.

e.  List of Legal Heirs.

f.   Aadhar of all legal heirs.

g.  Documentary proof of the properties mentioned in the WILL.


C) Notification

On receipt the petition for probate of will, the court issues notice to the legal heirs of the deceased to file objections, if any, to grant of probate. This is done in order to ensure that no injustice is done to other legal heirs and everyone must get fair opportunity to challenge the will and contest it, if requires. In such case if the any of the legal heir having objection can file his/her objection with help of lawyers for will disputes. Probate litigation attorney file his objection in court on WILL and if the court satisfies then the said testamentary petition will be converted in Suit.


D) Valuation of property for probate purposes

Valuation of property for probate purposes depends on the nature of the property claimed. Suppose it is movable property like shares of company then you have to get value of the share of the date on which application going to be filed. If the property is immovable like flat or land then you have to get market rate of the property as per current government valuation. For filing petition for probate of WILL, you can appoint official professional valuer or Probate lawyer could also do the same by taking of government Website portal like 


Court Fees for probate of a will

For probate of will in Maharashtra you have to pay 5 percent of the assets which are claimed in WILL, as court fees for probate of will in Mumbai. Probate fees in Mumbai and rest of Maharashtra is same. However, the said fees is also subject to a ceiling of Rs. 75,000/-. For probate of a will in Kolkata you will have to pay approximately around 4% of the valuation with a maximum cap at Rs. 50,000/-

 In addition to the grant of probate cost/ cost of probate, the probate lawyer cost also needs to be taken into account. The lawyer’s fee will depend on each lawyer and you will have to consult a lawyer to figure out what that lawyer is going to charge for his service.


What if the executor does not probate the will?

Avoiding probate is not possible in order to give effect and take action on WILL of the testator. According to the Indian Succession Act, if a person makes a will but does not get probate from a competent court, it cannot be of any value and the beneficiaries will not able to get the property transferred to itself. The beneficiary named as per his wish has to apply for probate under section 222 of the Indian Succession Act.


Which court to file the probate application?

If the case is in the city, apply for probate before the City Civil Court. Otherwise, the application will be made before the District Judge under whose jurisdiction your residence would fall. Every District and Civil Court has limitation based on value to entertain a case or application so, if the valuation of the properties under the will extend that amount, then the application will have to be moved in respective High Court of the state. For example, if the Bangalore City Civil Court has a pecuniary jurisdiction of 1.00 crore and the property value is equal to or less than 1.00 crore then the probate petition will be filed in City Civil Court but if the value is more than one crore then it will be filed in Karnataka High Court.


Can one apply for Probate without a will?

No one cannot apply for Probate without WILL as it is not possible but in cases where a person has died without a WILL, under the provisions of the Indian Succession Act, the Letter of Administration can be granted by the Probate Court to distribute the deceased property among the heirs. Through Letter of Administration the administrator gets all the rights of the testator to execute further devolvement of the property.


Can a Will be challenged after Probate?

The right to challenge the grant of probate comes under Section 263 of Indian Succession Act. The grant of probate can be challenged for annulment or be revoked for a just cause and those just causes can be;

a.   The proceedings to obtain the grant of probate were defective

b.   The grant was obtained fraudulently

c.   The grant was obtained by means of untrue allegation

d.   The grant has become useless and inoperative due to some circumstances

 

Written By:
Abhimanyu  Shandilya

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