Probate of will without an executor
Will
(Querist) 29 March 2012
This query is : Resolved
My father left a will without mentioning an executor. Can I individually apply for the probation of Will to the court or does my brother also need to join me for the same? He is not interested in doing so.
Also, how long will it take to probate the Will?
Adv. Sagar R. Jadhav
(Expert) 30 March 2012
If no executor was appointed in the will, the court will appoint an administrator under section 74 of Probate & Administration Act 1898.
prabhakar singh
(Expert) 30 March 2012
PART IX: PROBATE, LETTERS OF ADMINISTRATION AND ADMINISTRATION OF ASSETS OF DECEASED of the Indian Succession Act, 1925 deals with the matter you have before and you need to apply for a letter of administration under section 218. which reads "To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.- (1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased."
Since no executor was appointed in the WILL no probate can be granted as laid down in section 222 which reads"222. Probate only to appointed executor.- (1) Probate shall be granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary implication.
Illustrations
(i) A wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds "but should the within-named C be not living I do constitute and appoint B my whole and sole executrix". C is appointed executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,--"I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates". The nephew is appointed an executor by implication.".
