vikas mishra (ADVOCATE) 06 July 2009

probate and will

CAN ANYBODY GUIDE BE THAT IS IT NECESSARY THAT EVERY WILL HAS TO BE PROBATED?

3 Replies

Shree. ( Advocate.) 06 July 2009

Under Section 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 Jaina 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.

Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.

Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such.At the sametime,

If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.

According to Section 222 of the Indian Succession Act, 1926, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. 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.

Probate of will is a legal process in which the court of adjudicature certifies the authenticity of the will under their court seal and hands it back to the executor. Though it is not mandatory that every will should be probated, it is advisable to do so to ensure that the acts and deeds performed by the executor of the will cannot be challenged at a later date. Thus all actions taken by the executor acquire stamp of legality and can be defended in a court of Law. Courts will not entertain suits pertaining to wills unless the will in question has been probated.

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Manish Singh (Advocate) 06 July 2009

yes Mr. Shree is correct. a will is not required to be probated but if probate certificate is grnted by the cour, it estabilshes the genuineness of the will.

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