What is Probate? A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.
Probate is a legal process in which the court certifies the authenticity of the will. It establishes the legal character of the Executor to implement the Will and to the validity of the Will. Probate can be granted only to the executor appointed by the will. The appointment may be expressed or implied.
A person to whom a grant of Probate or Letters of Administration is made (Executor or Administrator) is required to file a full and true inventory of the property and credits of the estate and of all the debts owing by any person in Court within six months, or such further time as the Court may allow from the date of the grant and to render accounts within one year, or such further time as the Court may allow.
How to obtain a probate of a will?
A probate is a copy of a will certified by a court of competent jurisdiction. It proves that it is the last and final will of the deceased penned on a particular date. A probate is granted with the court seal and has a copy of the will attached to it. An administrator or executor appointed under the will may not be able to administer its provisions without a probate. It may also be necessary when the deceased leaves behind securities with various nominees and there is a dispute on their division. The nominee can only hold the assets in trust till these are divided as indicated in the will after a probate has been obtained. In the absence of a will or nomination, succession laws come into play.
Application The application for a probate has to be made to the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through a lawyer.
Documents The court usually asks the petitioner to establish the proof of death of testator, proof that the will has been validly executed by the testator, and that it is the last will and testament of the deceased.
Fees The court may impose a percentage of assets as a fee to issue a probate. In Maharashtra, for example, a court fee of Rs 25 is payable for assets less than Rs 50,000; 4% for assets between Rs 50,000-2 lakh, and 7.5% for assets over Rs 2 lakh. There is a ceiling of RS 75,000.
On top of that you have to incur expenses on Lawyer’s fees for Drafting & appearing. Please enquire total expenses that you have to incur to obtain Probate i.e. Court Fees of Rs.75, 000/- plus Lawyer’s Fees, which in city like Mumbai is costly.
Is Probate Compulsory?
A probate for a will is required to be obtained only under circumstances mentioned in Section 213 of Indian Succession Act, 1925.
(i) All wills of Hindus etc. made on and after 1 September 1870, within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.
(ii) All such wills made outside the territories mentioned in (i) above relating to immovable properties situate within the said territories must also be proved and probate thereof obtained, before any right as executor or legatee can be established.
(iii) Wills other than those in categories (i) and (ii) above made before 1 January 1927, i. e to say, such wills made outside the territories mentioned in (i) above, relating to movable property situate inside or outside the said territories or immovable property situate outside the said territories are not required to be proved or probated
In the absence of a will, if there is no survivor amongst the account holders and a no nomination had been done by the holder(s) earlier, a Succession Certificate is be the primary document through which the heirs can stake a claim to the assets of a deceased relative. A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name.
· It establishes the authenticity of the heirs and gives them the authority to inherit debts, securities and other assets that the deceased may have left behind.
· Where the Application has to be made? The beneficiary has to approach the district or the high court within whose jurisdiction, i.e. legal territory, the assets fall (where the properties of your deceased relative are situated) and file a petition for a succession certificate. Both these courts have concurrent jurisdiction, i.e. they are both at par. Depending on the value of the estate of the deceased, the matter shall go to the type of court, which can conduct cases for that value [This is known as “pecuniary jurisdiction” of the court]
· The petition should mention the relation of the petitioner with the deceased, details of other surviving legal heirs and beneficiaries, the time, date and place of death and also if he died intestate. You will also have to attach the death certificate and other documents that the court may require.
· The court, after examining the petition, issues a notice to all those concerned. It also issues a notice in a newspaper and specifies a time frame (usually one-and-a-half months) within which anyone who has objections may raise them. If no one contests the notice and the court is satisfied, it passes an order to issue a succession certificate to the petitioner. If there is more than one petitioner, then the court may jointly grant them a certificate but it will not grant more than one certificate for a single asset. For this you have to then submit Judicial Stamp papers of sufficient amount (as per the prescribed court fees structure) in the court, where after the Certificate is typed by the court staff, duly signed and sealed and delivered.
· Apart from lawyer’s fees, courts levy a fixed percentage of the value of the estate as a fee which may be Upto 3% of the value of assets.
· How long should it take to obtain the Succession certificate from the court? If the petition is not contested then the court should roughly take about 3-4 months (sometimes even 5-7) from date of filing to receive your certificate.
· Once you have the certificate, you are authenticated to distribute the assets to the legal heirs as per the succession laws. Most people think that if the succession certificate is obtained then the person is the rightful owner of the deceased person’s properties, which is not true. A succession certificate allows the person to act exactly similar to how a nominee would act. It gives the authority to the holder for distributing the deceased person’s assets.
· A Succession Certificate is not granted in cases where obtaining a Probate of Letter of Administration is necessary such as when there is a valid will.
Letters of Administration:
In the event a person dies intestate (person dying without making a will) or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.
Letter of Administration is issued by a competent authority (court) and appoints the Administrator to dispose of the property of a person. It is required when:
· Testator has failed to appoint an executor under a Will OR
· Where the executor appointed under a Will refuses to act OR
· Where executor has died before or after proving the Will but before administration of the estate.
A Letter of Administration can be granted after 14 clear days from the date of death of an intestate.
For obtaining a letter of administration the beneficiary has to apply to the court. The court on receiving satisfactory proof of valid execution of the will issues letter of administration to the beneficiary. The application for letter of administration has to contain the following details:
· The time of the testator’s death
· That the writing annexed in his last will and testament
· That it was duly executed
· The amount of assets which are likely to come to the petitioner’s hands, and
· The petitioner is the executor named in the will
A Letter of Administration may be granted to one or several people who may apply to the Court. If no one applies, it may be granted to a creditor of the deceased. A Letter of Administration cannot be granted to a minor or a person of unsound mind.
Form for Nomination
Nomination facility is available at the time of acquiring property. This is required to be submitted as per Bye Laws No.32 Appendix-14. Nominations can be changed at later date by submitting fresh Nomination along with fees of Rs.100/-.
Who can be a Nominee?
A nominee is appointed by the owner and can be anyone to whom the person wants the ownership of Flat to go, in case of his/her death. General practice is to appoint spouse, children or parents as the nominee.
Word of Caution: Please ensure that beneficiaries as per Nomination form is same as in Will.