Probate
nishad
(Querist) 11 March 2010
This query is : Resolved
Dear all..
Is it mandatory to get the christian Will probated in india in favour of the executants of the Will?
Raj Kumar Makkad
(Expert) 11 March 2010
Yes. There is no distinction in this matter.
nishad
(Querist) 11 March 2010
But i guess there is a distinction and moreover probate is state subject...
Mr.Raj can you expalin more on this...
Bhumik Dave
(Expert) 11 March 2010
yes. it is mandatory.
A V Vishal
(Expert) 12 March 2010
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
A V Vishal
(Expert) 12 March 2010
The rules relating to intestate succession among Christians would come into operation only if the deceased had not executed a will or any document of gift or a settlement deed. In the absence of the aforesaid documents the rules regulating succession enumerated under sections 29 to 49 in Part V of the Indian Succession Act, 1925 would come into play. But, if there is a Will executed by the deceased, the general law as contained in sections 57 to 391 would apply.
Where a Will was executed by a deceased, succession to his property is regulated by the provisions of the Will. If an executor is named in the Will, he has to get the Will probated as it is mandatory under section 213 of the Indian Succession Act. After obtaining probate, it is the duty of the executor to carry out the distribution of the property in accordance with the provisions of the Will. It may be noted that probate can be granted only to the executor appointed under a Will as is provided under section 222. If no executor is appointed by the Will, anyone of the persons claiming a right under the Will can file a petition for obtaining letters of administration as is provided under section 219. [But if the deceased has died intestate, wife or husband, as the case may be, has got preferential right to get letters of administration as is provided under section 219 (a) and (e).] In the case of Christians, those persons who are connected either by marriage or consanguinity are entitled to obtain letters of administration. On receipt of letters of administration, the intention of the testator as embodied in the Will has to be carried out by the person who obtained letters of administration as is provided under section 216. As section 212 exempts Christians also from the operation of that section, it is not mandatory for Christians to obtain letters of administration for establishing right to the property of an intestate. Therefore, in the absence of a Will a suit can be filed for establishing the rights which can be followed up by partition. Against a preliminary decree in a suit for partition an appeal will lie and Final Decree will be drawn up only after the decision in the appeal. To give effect to the Final Decree, in case of difference of opinion among the parties, execution proceedings will have to be instituted. For and on behalf of the deceased, the grantee of probate or letters of administration alone shall have power to sue or prosecute any suit or otherwise act as representative of the deceased as is provided under section 216.
James Arun
(Expert) 12 March 2010
Assumption: Testator has an estate. In the estate of the Testator, there are movable (usually bank deposits, shares, jewelry, etc) and immovable properties (lands, buildings, etc), which are intended to be shared among the named beneficiaries, and duly administered by a named Executor.
If the above assumption is true, then the alleged Will has to be probated (proved) at the jurisdictional District or High Court. Probate Decree issued by such Courts has validity all over India.
I have raised this topic earlier as well. It is good for the people who ask questions to be as detailed as possible in their questions. The Webmaster of the site has to ensure that they advise the people who post questions accordingly, for their own benefit.
James Arun
arunkumarpj@gmail.com
Guest
(Expert) 12 March 2010
yes. it is mandatory
nishad
(Querist) 13 March 2010
Thanks to all experts and in particularly to Mr.vishal who has given a splendid explanation on the topic.Thank you friends
