Probate | Probate In India | Definition, Importance & Application
“Probate” is derived from a Latin verbs “Probo” and “Probare” which means to try, test, prove and examine. Probate In India The earliest known English word “Probate” was in 1463 defines as ‘the official proving of the will.’
It is nothing but a judicial process whereby a Will is “Proved” before the Court and accepted as any Public document(s) which is the true and final testament of any deceased person or whereby the estate is settled according to the law of intestacy in the state of his/her residence at the time of death in the absence of a legal will.
All cases in which no Will is found, Probate is still required to pay to decedent’s final bills and distribute their estate.
Probate is used by the executors of the Will, to authorize them with a seal of approval from the Court.
- Original Will
- The proof of death of the Testator
- Any other document, if demanded by Court
It is issued with reference to Section 57 and Section 213 of the Indian Succession Act. One can apply for a probate after 7 days of the death of the Testator.
The appointment may be express or implied by necessary implication. It cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals.
Here is the general process which starts with-
- The first involves making of an application to the District Judge through a probate petition which must be duly signed by and verified by or on behalf of the applicant. The probate petition should be in a prescribed format under Civil Procedure Code, 1908 and it shall be done after 7 days of the Testator’s death.
- The second step is to send the Application to the High Court, under Whose Jurisdiction property falls. Then a lawyer shall prepare an application, in some cases, the lower Court can also accept the Application.
- One needs to submit certain documents that can verify the genuineness of the Will, death certificate, and other documents. These prove that the Testator had free Will.
- When the Court receives the Application, it verifies all the details. Then it invites the nearest kin of the deceased for claiming the Probate. Finally, it showcases the invitation letter at prominent places for the invitation of any objection. If after 30 days, the Court files no objection, the issuance of Probate is complete.
This Application will be signed by the executor(s) or his/her beneficiary. The petitioner is also required to submit a blank stamp paper amounting to the requisite court fee. Thereafter the Court will provide the Probate.
Grant of Probate
Once an Application will be submitted before Court, it will be verified by the authorities, and letters will be sent to the deceased. It is an intimation of issuance of Probate
Probate is issued of no objections are received from any kind or any public and it is completed after payment of court fees.
Hon’ble Court, after being satisfied that the present Will is true and validly executed, will grant the Probate to the executors named in the Will.
Grant of Probate can be given to all or any person who has interest or right in the property of the deceased and they can apply for Probate or Letters of Administration.
Importance of Executor
The executor has no role during the drafting of the Will, except to accept or refuse to accept the role and his responsibilities as an executor of the respective Will.
The role of the executor is of great importance only after the demise of the Testator. He derives the powers to dispose of the estate of the deceased Testator in terms of the Will.
In any case, if a dispute arises between the beneficiaries and legal heirs at the time of execution of the Will of the Testator, then the executor of the Will plays a major role in settling the dispute. He acts as a mediator among the family members of the deceased Testator and will ensure smooth and proper disposition of the estate by discharging his responsibilities of maintaining proper accounts of the estate, debts, and liabilities, etc. Probate In India
He may also recommend certain clauses to be inserted while drafting the Will if he possesses all that knowledge which can deal with the legal complexities.
If the executor is none other than the family friend or a family member, then they may be in a position to discharge certain obligations and can recommend the name of the beneficiary or legal heir who can take onerous bequests in a proper manner after the demise of the Testator.
He is the person who steps into the shoes of the Testator and ensures that the last wishes of the deceased are executed.
If none of the family friends or family members or in short in legal heir have applied for Probate, then even the creditor of the Testator can apply for Letters of Administration. Probate In India
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Why is it necessary?
Probate is necessary because when the assets are solely in the name of the deceased. An estate must go through probate to transfer the property into the names of beneficiaries.
Probate Assets are the assets that may be owned by the deceased. This can include Real property that is solely in the name of the deceased. Personal properties such as jewelry, furniture, and automobiles can also be included.
While executing a will, it is necessary that the executor must apply for Probate, so that the decedent’s last wish is fulfilled. Probate is obtained so that there is proof that the person had some assets which need to be distributed and no one else could execute that Will except the executor or the administrator appointed by the Court.