what is the procedure of probate, if it is necessary ?although we have a will ?
N.K.Assumi (Advocate) 13 May 2010
Probate is official Proof of a will. It means the copy of the will certified under the Seal of competent court with the grant of administration to the estate of the Testator. When the Probate of a will is granted it establishes the will from the death of the Testator and renders all intermediate acts of the executors as such. the grant of probate is dependent on the genuineness of the will propounded and the right of the Executors thereby appointed to represent the estate of the Testators.
Saket Gandhi (advocate) 13 May 2010
In your case specify where the deceased had made the will and where the property is situated.
Since, Probate is not necessary to be obtained when the Wills are made by Mahomadans and is only necessarily required if it was made by any Hindu, Buddhist, Sikh or Jaina residing within local limits of Ordinary Original Civil Jurisdiction of High Courts at Calcutta, Madras and Bombay or where such immovable property is situated in such limits. (section 213 of the Indian Succession Act)
Thus, if the Will made outside the above mentioned areas are not to be probated.
Probate is only given to the executors of the Will. (section 222)
Under Section 276, an application for probate with Will annexed is to be made before the District Court under whom such property is situated in form of a petition and a statement stating (a) the time of the testator's death (b) that the writing annexed is 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. Here the petitioner would be the person whom has been appointed as the executor.
Therefore, now it is you who has to decide if probate is necessary or not in your case.
I hope, I have made the matter clear.