In India, there are two ways to transfer inheritance. The first way is through a will, and the other is without a will, where equal distribution occurs depending on the religion. The probation of Will in India helps to validate it legally, which comes into action immediately after it is certified with a court seal.
A will is a legal document where the testator/testatrix expresses their intentions and wishes regarding their assets which will come into effect after they pass away. A testator/testatrix can legally dispose of their property to any family member, friend, or any other person with the probation of Will in India. The process of probation of Will in India increases the legal value or credibility of a will which is proved by the testator’s signature and witness attestation.
What is the Probation of Will?
- Probation of Will in India is defined as the copy of the Will, which is certified with a court seal of competent jurisdiction where the administrative authority of the estate of the testator is granted.
- A will is made to express the last wishes of an individual towards their assets. The person who owns the assets and makes the Will is known as a testator/testatrix. The Will can only be revoked during their lifetime.
- The Will contains the name of the persons who execute it, and they are known as executors of the Will.
- The probation of Will in India is granted only to the Executor of the Will, and it is crucial if there are multiple assets involved in different states.
- The probation of Will in India establishes its authenticity to make it legally valid, and grants access to the testator to distribute the property between designated beneficiaries and heirs.
What is the duration of Probation of Will in India?
- The Executor can apply for probation of Will in India after a week from the testator/s demise. The procedure of probation of Will in India can take up to 6 to 9 months to complete.
- In case of any objection from the public or third parties, the probation can take even two years to reach any final decision.
- The waiting period of probation of Will in India can last longer during objection in regards to its seriousness. The probation of Will online is also available for people who cannot access it otherwise.
What are the situations where Probation is Mandatory?
According to the Indian Succession Act 1925, the probation of Will in India is mandatory under certain circumstances. They are as follows:
- If the Will was made within the regional limits of the governor of West Bengal and the geographical area of the state.
- The probation of Will in India is mandatory if made within the local civil jurisdictions limit and municipal limit of Chennai and Bombay.
- The probation of Will in India is compulsory if made by a Hindu, Sikh, Jain, or Buddhist who resides in the geographical areas of West Bengal, Madras, and Mumbai.
It is noted that even if the Will does not mention any immovable property, the people residing within these areas have to apply for probation of Will in India.
Other than these limits, the probation of Will in India is not compulsory. The probation is not restricted by law, but it is advised to apply for probation of Will in India to make it credible and valid in the future to settle any objections that may arise.
Role of Executor of a Will
- The Executor is the person whose name is mentioned in the Will to execute the distribution of assets between the heirs or beneficiaries according to the deceased person’s wishes.
- The probation of a Will in India does not make it necessary to name an executor in the Will, but it is advisable to do so. The Executor’s job is to ensure proper interpretation and distribution of assets among the heirs.
Applying for a Probate
Drafting a will is the first process of applying for a Probate. Only the executors whose names are mentioned in the Will can apply for probate. They have to make an application under the court seal for a grant of probation. If there is more than one Executor, then the application for probation is granted to all of them together.
In case of the absence of executor names, the court issues a letter of administration. Sometimes Inherent tax needs to be paid for the Will.
What happens when the Executor’s name is not mentioned in a will?
- In case of the absence of the Executor’s name in a will, the legal heirs can also choose to appoint an individual as an executor. The appointed individual will have the authority to distribute the properties as mentioned in the Will.
- If the heirs are not able to choose an individual who can be appointed as an executor, then any one of them may appeal in court to appoint one.
Fees for Acquiring a Probate
- The probation of Will in India is settled by a High Court, so it is required to pay the court fees, which depend on the total asset value. It is different for every state.
- The facility of making a will online is also available where the individual can also get necessary suggestions and solutions through online legal advice services.
- Example: In Maharashtra, it is 2% to 7.5%, which can be a maximum of Rs 75,000.
The process of making a will and probation of Will in India can include many important points which should be carefully noted. The grounds on which the Will can be challenged are to be taken into consideration, and a person can seek online legal advice to solve every query. The Will is made to ensure the property is divided among the heirs as wished by the testator/testatrix.