PROBATE OF WILL & PROCEDURE FOR PROBATE – A GLANCE
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.
TO WHO CAN A PROBATE BE GRANTED
Probate can be granted only to the executor appointed by the will. The appointment may be express or implied by necessary implication.
It cannot be grated to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company satisfies the conditions prescribed by the rules made by the State Government.
PERSONS ELIGIBLE FOR GRANT OF LETTER OF ADMINISTRATION
Where the deceased was a Hindu, Muhammadan, Buddhist Sikh or Jain or an exempted person and has died intestate, the court may grant administration of his estate to any person, who according to the rules for the distribution of the estate applicable for in the case of such deceased would be entitled to the whole or any part of such deceased 's estate. When several of such persons apply for such administration, it shall be the discretion of the court to grant it to any one of them. When no such person applies, it may be granted to a creditor of the deceased.
Letters of administration entitle the administrator to all rights belonging to the intestate as effectively as if the administration has been granted at the moment after his death.
They however do not render valid any intermediate acts of the administrator tending to the damage of the intestate's estate.
For obtaining a letter of administration the beneficiary has to apply to the court. The court on receiving satisfactory proof of valid execution of the will issues letter of administration to the beneficiary. The application for letter of administration has to contain the following details:
(a) the time of the testator's death
(b) that the writing annexed in his last will and testament
(c) that it was duly executed
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) the petitioner is the executor named in the will
PROCEDURE FOR OBTAINING PROBATE
A petition for probate must be filed in court along with the will in question. It should contain the following facts.
(f) the time of the testator's death
(g) that the writing annexed in his last will and testament
(h) that it was duly executed
(i) the amount of assets which are likely to come to the petitioner's hands, and
(j) the petitioner is the executor named in the will
The application for probate shall be signed and verified by the executor or beneficiary.
The petitioner shall furnish a blank stamp paper of value equal to the requisite court fee, along with the application. The court shall grant the probate on the said stamp paper.
After receipt of the petition, the court issues notice to the next of kin of the deceased to file their objections, if any, to the grant of probate.
A general public notice is also given in a newspaper.
The petitioner is thereafter asked to establish the
(a) Proof of death of the testator;
(b) Proof that the will has been validly executed by the testator
(c) Will is the last will and testament of the deceased
PROOF OF DEATH
Proof of death is usually shown by submission of original death certificate
If a person was killed in an action while serving in armed forces, the official notification may be produced in proof of death of the testator.
Where there is an air crash or sunk ship on the high seas and there is no possibility of survival and a persons body is not recovered the court may take notice of the occurrence and be satisfied regarding the fact of death.
Where a person disappears or is missing, such a person as per law is presumed to have died if he is not heard of for a period of seven years.
ISSUE OF PROBATE BY THE COURT
On the satisfaction that the will in question has been validly executed the court will grant probate to the executor named in the will.