What Is Probate of Will?

The Idea of a Will:

A will is a testament and a legal declaration in which the testator names one or more people to manage his or her estate and make arrangements for the transfer of his or her property upon death. In India, anyone over the age of 21 can write a will, which is a very useful tool for estate planning.

However, only self-acquired assets—not ancestral assets—can be included in the will. A Will can only be revoked during the testator’s lifetime and takes effect immediately upon the testator’s death. However, the testator cannot leave his estate to a charity, which would leave his family in poverty and deprive them, unless there are very good legal grounds for the disinheritance that would stand up to a court’s scrutiny.

Eligibility to Make a Will

Under the Indian Succession Act of 1925, any mature adult with sound judgment is eligible to make a Will to plan his or her estate upon death. As a result, a person who only has a physical disability, such as a loss of sight or hearing, cannot be prevented from making a Will so long as they are mentally fully aware of what they are doing and are acting voluntarily without being coerced, influenced, or otherwise influenced in any way. The below mentioned points are requirements to meet 

This act excludes Muslims because their laws are largely governed by Muslim Personal Law. However, the testator must be of sound mind and free from any undue influence or coercion. The act of making the will must be voluntary. The testator must be fully aware of the contents of the will.

The Essentials of a Will:

A will’s enforceability is aided by the following checklist:

• The testator’s personal information, such as name and address, should be included in the Will.
• In addition to stating that the testator is of sound mind and is making the Will voluntarily and without coercion, the necessity of making the Will should be stated.
• Use of clear language when leaving the estate to someone else.
• The person named by the testator to carry out the testator’s wishes—the executor—should be mentioned.
• The testator should sign the will and have two witnesses attest it, and the property list should be added.

Probate of the Will – Legal Process

The legal process that a will goes through to demonstrate its validity before anything can be distributed to the legatees or recipients is known as probate. The executor must begin the probate process in a High Court or a District Court with appropriate jurisdiction, regardless of whether a Will has been registered. The court can appoint an Administrator of the Estate if there is no Executor. You are required to pay a court fee for probate that is based on the value of the assets that are the subject of the petition. The court fee varies from location to location, but in Maharashtra, it is anywhere from 2% to 7.5% of the value listed in the Schedule, up to a maximum of Rs 75,000.  

The following are the steps that must be taken during the probate process:

1. A petition must be submitted to a competent court of jurisdiction.
2. The testator’s death date, time, and location should be listed in the petition, and the Will should be attached as an exhibit.
3. At the time of filing, the petition ought to be properly verified.
4. In order for the court to grant the probate on that stamp paper, a stamp paper containing the necessary court fee should be attached to the petition.
5. The court asks for objections from the legal heirs or kin after receiving the petition. This notice is distributed to two major English-language and regional newspapers, giving readers a specific time frame within which to submit objections.
6. The concerned court will later grant probate of the will once it is satisfied that it has been duly executed. In most cases, the court checks to see if the Will has been properly executed in accordance with the law.

Learn More: What is Probate of Will?

Reasons for Probating a Will

The Indian Succession Act of 1925 mandates probate when a will is written in the regime of the Lieutenant-Governor of Bengal or within the Ordinary Original Civil Jurisdiction of the High Courts of Judicature in Madras and Bombay. Even though the Will does not deal with any movable property, the provisions of the aforementioned Act refer to the locations in the same manner as they were known at the time the Indian Succession Act of 1925 was enacted. Also, if the Will was written by a Hindu, Jain, Sikh, or Buddhist, the mandatory probate system is important. However, obtaining probate is recommended if the validity of the will is likely to be challenged in the future on any ground.

Probate is required for the transfer of immovable property in the rest of India if the property is located in the territory of formerly unpartitioned Bengal or in territories under the jurisdiction of the High Courts of Madras or Bombay.

Conclusion:

The fact that the testator of the Will and the witnesses have appeared before the sub-registrar of assurances and that their identities have been verified does not necessitate probating a registered Will. However, if the veracity of the Will is questioned, the registered Will can also be probated. However, a will is not one of the instruments that must be registered under the Registration Act of 1908, and even a will that has not been registered is still valid. As previously stated, the Will must be probated in order to be executed, and this requirement is mandatory in cities like Delhi, where it is required to probate unregistered wills.