PROBATE
According to section 2 of the Indian Succession Act 1925, probate means the copy of a WILL certified under the seal of the court of the competent jurisdiction with a grant of administration of the estate of the Testator. It is the declaration of the competent court about the legality or correctness and geniuses of the WILL of the deceased.
Only the probate court (district court or High Court) have the right to grant probate of a will of the deceased. To get the will probated in your name you have to file a petition before probate court with sufficient stamp. You have to produce the attesting witnesses before the court as a proof. After probation gets done you can move for mutation. The judgment regarding the probate is judgment in Rem and it is binding to all.
U/s 212(2) of the Indian Succession Act, 1925, Hindu, Muslims, etc are not bound to apply for letters of Administration (probate) .It is optional of the parties. The advantage of probation is it establishes the genuineness of WILL from the death of the testator. There is no limitation for grant of letters of administration or probate.
U/s 219 of the Indian Succession Act ,1925,if the deceased has died intestate and was not a person belonging to any of the classes referred to in section 218 ( i.e. ,Hindu, Mohammedan ,Buddhist ,Sikh or Jain or an exempted person ), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section.
According to section 222 of the Indian Succession act, 1925, probate shall be grant only to an Executor appointed by the WILL. In the absence of the Executor being named in the WILL, the Legatees or the Beneficiaries under the WILL could also seek probate of the WILL. The principal court or the High Court has the jurisdiction to grant the probate of the WILL. The documents needed for probation of a WILL are –original will, title deed pertaining to the immovable properties mentioned in the WILL
For getting probation a petition has to be filed before the principal Court of Original Jurisdiction or before high Court U/S 374 of Indian Succession Act. The petition for probate should contain; the death of the testator, the testament, the amount of the assets which are likely to come to the petitioners hand and a blank stamp paper of value equal to the requisite court fee. The petitioner should be the executor named in the WILL. The probate shall grant in the same stamp paper.
The Court will issue a notice at the initial stage and a paper publication as well as gazette publication. The petitioner is thereafter asked to establish the proof of the death of the testator and proof that the WILL has been validly executed by the testator. In case such petition is contested, it will be converted into regular suit and it will dispose accordingly. The appointment may be expressed or implied. Executer cannot be a person who is a minor or is of unsound mind, or to any association of individual unless it is a company satisfies the conditions prescribed by the rules by state government.
When a person died intestate, the court may grant administration of his estate to any person, who according to the rules for the distribution of the estate applicable for in the case of such person would be entitled to the whole or any part of such deceased‘s estate. When several people apply for administration it is the discretion of the court to grant to any one of them. If no one is applying it may be granted to the creditor of the deceased.
When a will is accidentally destroyed, on evidence, a copy WILL or draft may be admitted to probate.
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