A Will to be probated is a crucial legal process that ensures the validity and execution of a deceased person’s estate as per their wishes.
In India, the Indian Succession Act, 1925 governs probate proceedings, outlining the steps to obtain probate through a probate court.
Probate provides legal authority to the Executor named in the valid Will to manage and distribute the deceased person's assets.
This article delves into the probate process, the legal procedures involved, and when probate is required for transferring assets like immovable property, bank accounts, and other financial assets.
What Is Probate?
Probate is the legal certification of a last Will by a competent court that grants the Executor mentioned in the Will the authority to distribute the deceased person’s estate.
It acts as proof of the Testator's assets and ensures that the Will is legally valid and free from undue influence.
When is Probate Required?
- If the Testator dies leaving a Will in metro cities like Mumbai, Chennai, or Kolkata, probate is mandatory.
- When the deceased left behind immovable property situated within municipal limits of specified jurisdictions.
- In cases where family members or third parties may raise objections to the probated Will.
- When the Executor named in the Will needs the legal power to execute asset transfers.
The Probate Process In India
Step 1: Filing a Probate Petition
A probate petition must be filed in a court of competent jurisdiction with the following documents:
- Original Will
- Death certificate of the deceased person
- List of probate assets
- Details of the Executor named in the Will
- Applicable court fees
Step 2: Grant of Probate by the Court
The probate court issues a grant of probate after verifying:
- The authenticity of the last Will
- The absence of undue influence or coercion
- That the Executor named is willing to administer the estate’s assets
Step 3: Notifying Legal Heirs and Beneficiaries
The probate proceedings require a public notice to be issued, informing legal heirs and other interested parties about the probate suit. If no objections are raised, the simplified probate process proceeds.
Step 4: Objections and Court Hearings
If any family member or interested party raises objections, the case becomes a probate suit, requiring the High Court to settle disputes.
Step 5: Distribution of Assets
After obtaining probate, the Executor mentioned in the Will distributes deceased’s assets to the designated Beneficiaries as per the Will's instructions.
Probate vs Letters of Administration
In cases where there is no Executor named, letters of administration can be sought by an interested party to distribute the decedent’s assets.
This process differs from probate as the court appoints an administrator rather than confirming an Executor mentioned in a Will.
How To Avoid Probate
- Family settlements: Assets can be distributed through private agreements.
- Jointly owned assets: If an asset is jointly owned, it passes directly to the surviving owner.
- Nominee arrangements: Many financial assets allow designated Beneficiaries to inherit assets without probate.
Probate & Estate Planning
- A well-drafted last Will can ensure a smooth probate process.
- Creating a Trust can help bypass probate and allow for direct asset transfer.
- Legal representatives should plan for the court fees, lawyer’s fees, and applicable court fees associated with the probate process.
The Bottom Line: How Yellow Can Help
Understanding probate laws under the Indian Succession Act, 1925 is essential for effective estate planning.
The probate process ensures that legal heirs receive their rightful inheritance while preventing disputes over the deceased person’s estate.
Consulting legal experts and ensuring proper documentation can help streamline the probate proceedings and protect the interests of all parties involved.
At Yellow, we can help you with all aspects of estate planning, including Wills, Trusts, Powers of Attorney, Gift Deeds, Legal Heir and Succession Certificates, and Living Wills. We also offer post-demise and asset transfer services. Our team of legal experts has more than 50 years of combined experience.
