Probate of a will.
GAURAV
(Querist) 27 October 2011
This query is : Resolved
Sir, What is meaning of "probate of a will". Is it different from "WILL DEED"? If different from "WILL DEED" then where it is required?
Raj Kumar Makkad
(Expert) 27 October 2011
Probate means copy of the will certified under the seal of a court of a competent jurisdiction. Probate of a will when granted establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.
A probate differs from succession certificate. A probate is issued by the court, when a person dies testate i.e.having made a will and the executor or beneficiary applies to the court for grant of probate. in case a person has not made a will his legal heirs will have to apply to the court for grant of a succession certificate which will be given as per applicable laws of inheritance.
prabhakar singh
(Expert) 27 October 2011
A probate is a proceeding in court of law by adopting which the WILL is sought to be proved by the executor of the will{in Case no executer was appointed by the testator of the WILL then a letter of administration is applied for instead of probate;once a will is probated or a letter of administration is issued by the court by its judgement passed,the WILL becomes binding of its proved existence against the whole word and no body can there after challenge the will in any other proceedings.
So you may now understand it is different than a Will,a proceeding to prove the will.
For detail knowledge of these things one may look into provisions contained in Indian Succession Act 1925.
Sailesh Kumar Shah
(Expert) 27 October 2011
well explained by both learned experts. No need to add more.
Arun Kumar Bhagat
(Expert) 28 October 2011
In a WILL if no executor is appointed or the executor is not willing to get the Probate or untraceable then can't any beneficiary of the willed property apply for Probate ? I need answer on this situation.
ajay sethi
(Expert) 28 October 2011
agree with experts
sanjeev murthy desai
(Expert) 28 October 2011
Dear Mr. Arun Kumar Bagat,
In such circumstances probate should not be possible. hence, beneficiary may file application for grant of Letter of Administration.
prabhakar singh
(Expert) 28 October 2011
Dear Mr. Arun Kumar Bhagat!
1]when executor is appointed but not willing to act then definitely beneficiaries can move
for probate.
2]But in case no executor appointed by the testator in the will it would be only beneficiaries moving for LETTER OF ADMINISTRATION AND NOT FOR PROBATE.
sanjeev murthy desai
(Expert) 28 October 2011
Dear Prabhakar Sir,
As per succession Act, Probate only to the executors and not for beneficiaries. In case executor is appointed but not willing to do any act, in such circumstances beneficiaries shall have the right of Letter of Administration and not for probate.
prabhakar singh
(Expert) 28 October 2011
Yes ! i confirm the view expressed by Mr.Sanjeev. My earlier answer1] stands amended accordingly.
Ravikant Soni
(Expert) 28 October 2011
I do agree with Mr. Desai.
GAURAV
(Querist) 28 October 2011
Thank a lot to all the Experts for making detailed explanation.
Sachin Bhatia
(Expert) 02 November 2011
A probate for a will is required to be obtained only under circumstances mentioned in Section 213 of Indian Succession Act, 1925. Section 213 is reproduced for ready reference:-
“Section 213 : Right as executor or legatee when established –
(1) No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
[(2) This section shall not apply in the case of wills made by Mahommedans and shall only apply in the case of wills made by any Hindu Buddhist, Sikh or Jaina where such wills are of the classes specified in ‘Clauses (a) and (b) of Section 57.’]
The above sub-s (2) is substituted, by the Indian Succession, (Amendment) Act 16 of 1962 dated 30 March 1962, by the following :
(2) This section shall not apply in the case of wills made by Mahommedans, and shall only apply -
(i) in the case of wills made by any Hindu, Buddhist, Sikh, or Jaina where such will are of the classes specified in cll (a) and (b) of s 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act 1962 where such will are made within the local limits of the ordinary civil jurisdiction of the High Courts of Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immoveable property situate within those limits.”
Thus it is very clear from the above provision that a probate is required only under following circumstances :
(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 [see s 213 (2), infra].
(vi) Where a will is not executed within the territories mentioned in para (i) or the will does not relate to property situate within the territories mentioned in para (ii), sub-s (1) of s 213 is not attracted
