Will is a legal document that specifies the person’s intention and wishes, which needs to be performed after his/her death. The maker of the will is known as the testator/testatrix, and it can be revoked only during his/her lifetime.
Probate is defined under the Indian Succession Act, 1925 as – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.
The person who makes a will expresses his wishes to be executed after his death by certain persons named in the will. The persons named in the will to execute it are called its executors.
Probate can be granted only to the executor of the will. It is necessary if the will is for immovable assets in multiple states. Probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will.
What is Probate of a Will?
The word ‘Probate’ means to prove or validate something. It is a procedure for court approval of the Will as the valid and last Will of the deceased testator. According to the Indian Succession Act, 1925, “Probate of will, when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.”
It means that when a Will is probated, it gets officially certified with a seal of the court and provides the authority to the executor to appropriately distribute the assets of deceased testator and also to pay off bills and creditors from that estate.
What is the Procedure for Will Probate?
The procedure for probating of will is divided into four simple stages:
- The first step involves making of application to the District Judge through a probate petition which must be duly signed and verified by or on behalf of the applicant. The probate petition should be in a prescribed format under Code of Civil Procedure, 1908 and it shall be done after 7 days of testator’s death.
- The second step is to send the application to the High Court, under whose jurisdiction property falls. Then a lawyer shall prepare the application, in some cases lower court can also accept the application.
- One needs to submit certain documents that can verify the genuineness of the will, death certificate and other documents. These will prove that the testator had free will.
- When the court receives the application, it verifies all the details. Then it invites the nearest kin of the deceased for claiming the probate. Finally, it showcases the invitation letter at prominent places for invitation of any objection. If after 30 days, the court files no objection, the issuance of the probate is complete.
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The cost of obtaining probate varies from state to state as the District Court grants it. The fees depend on the value of the assets, which are the subject matter of the petition. In addition to court fees, the petitioner also has to bear the lawyers fees. These costs will be borne out of the estate of the deceased.