Probate Process in India

Probate is a legal process by which a will is “proved” in a court of law and accepted as a valid public document. It is essentially a certification by the court that the will was made by the deceased in a sound state of mind and is genuine. This process gives the executor the authority to administer the estate of the deceased as per the directions in the will.

What is Probate?

• Probate is a judicial certificate that validates the will of a deceased person.
• It gives the executor (the person named in the will to carry out its directions) legal authority to distribute the property of the deceased.

In India, probate is governed by the Indian Succession Act, 1925. Probate is compulsory for wills made by Hindus, Sikhs, Jains, or Buddhists if the property is situated in the jurisdictions of Mumbai, Kolkata, or Chennai (Presidency towns). In other areas, probate is not mandatory, though it is often obtained to avoid future disputes.

Steps in the Probate Process

1. Filing a petition in court

• The executor or an interested party files a petition for probate before the District Judge or High Court having jurisdiction over the area where the deceased resided or owned property.
• The petition must include:
  • Original will
  • Death certificate
  • Details of the legal heirs and property

2. Issuance of notice

• The court issues a public notice inviting objections from the public. This notice is typically published in newspapers and displayed on the court notice board.
• It allows anyone who may contest the will (such as other heirs) to raise objections.

3. Hearing and examination

• If objections are raised, the matter turns into a contentious probate case and is treated like a civil suit.
• Evidence is recorded, and witnesses may be examined to prove the validity of the will.

4. Grant of probate

• If no objections are filed, or if the court is satisfied after hearing the parties, it grants probate.
• The probate order acts as a conclusive proof of the validity of the will.

Documents generally required

• Original will
• Death certificate of the testator
• Identity and address proof of the executor
• List of legal heirs
• Property papers
• An affidavit affirming no other petition is pending for the same estate

How long does probate take?

The process can take anywhere from 6 months to 2 years, depending on:

• Whether the will is contested or not
• The complexity of the estate
• The efficiency of the court system

Costs involved

Probate involves:

• Court fees, which are generally a percentage of the value of the estate (varies by state)
• Legal fees for lawyers
• Miscellaneous expenses like publication charges

Importance of probate

• It gives legal recognition to the executor to manage and distribute the assets.
• Protects the executor from future claims by other heirs or creditors.
• Helps in the smooth transfer of property, especially when banks, companies, or land records departments demand probate before effecting transfer.

Conclusion

The probate process in India is designed to ensure that the will is genuine and to protect the rights of all heirs and creditors. Though it can be time-consuming, obtaining probate often helps prevent disputes later. If you are an executor or a beneficiary under a will, it is advisable to consult a lawyer to guide you through this process smoothly.