The importance of a Will when bequeathing assets such as property is well known. But while having a Will may make inheriting a property easier, the legal process can be more complex and long. This is because the authenticity of the Will — such as it being the last Will — still needs to be established.
To avoid issues relating to ownership later, it is advisable to probate the Will by following the steps suggested by law, even if it is not mandatory. For example, many property disputes are due to some beneficiary contesting the Will as being suspicious. Property buyers hence insist on probate of the Will to avoid legal trouble.
Probate decoded
Under the Indian Succession Act, probate means the copy of the Will certified under the seal of court. It is a process through which the judiciary establishes the authenticity of a Will, including the testamentary capacity of the person making the Will. For instance, the mental capacity of the testator and if there was any undue pressure to write it would be verified.
Probate is mandatory in certain notified towns and cities and under certain conditions. Under the Indian Succession Act, probate is mandatory for a Will in the state of West Bengal and municipal limits of the metro cities of Chennai and Mumbai. And the Will is made by a Hindu, Jain, Sikh or Buddhist residing in those regions and the Will deals with movable and/or immovable property situated in these places.
There may be other circumstances where a probate will be required. It is advisable to consult a lawyer who may advise on the need to obtain a probate. One example may be cases where there is a probability of the validity of the Will being challenged on any grounds by anyone.
Probate process
The Will must be probated after the death of the testator. A petition must be filed in the appropriate court with the names and addresses of the deceased’s legal heirs. The jurisdiction is typically the district court but it may be the higher court in some cases — for instance, if the property is in Chennai, Mumbai, Kolkata, or the Will is for a high-value asset. You would need a lawyer to complete the probate process, even if it is very routine.
The petitioner has to establish the testator’s proof of death, proof that the Will has been validly executed and confirm that this is the last Will of the deceased, says N. Ravichandran, Advocate, Madras Hight Court. The court issues notice to the next of kin of the deceased to raise any objections. The probate petition is also published to notify the general public — by posting a notice for thirty days — so that any objections may be raised. If there are none, the probate is granted and all the properties will be transferred to the beneficiaries, as indicated in the Will.
Documents required
Death Certificate of the testator is a key document that is required along with the Original Will. Identity proof (such as Aadhaar) of the beneficiaries mentioned in the Will is needed. Additionally, documentary proofs that establish the ownership rights of the testator over the property needs to be submitted. For example, if the property was self-acquired, the original purchase deeds or if it was ancestral property, documents that prove the legality of that inheritance would be required.
Costs, duration
The cost of obtaining probate varies from State to State. For example, in Maharashtra, the court fee varies based on asset value — from 2 per cent for smaller value properties to 7.5 per cent for higher value ones. The maximum fee is capped at ₹75,000. In Chennai, the fee cap is ₹25,000. The asset value is established by local property rates for land and norms for rates to use for building.
The process takes typically six to nine months, depending on the backlog in the court. However, Ravichandran notes that it could be much longer if there are any disputes and the process goes to court hearings.
What are the complications or issues that can happen in the probate process?
One issue that can happen is that there may be objections raised on the Will when it is notified by the Court. In this case, there will be evidence and arguments presented to the Court and a judgement passed. Others may include demise of witness or any of the beneficiaries in the Will.
Common mistakes
One vital way to prevent mistakes happening is to ensure that the Will is done right and ensuring that there is no scope for circumstances that may be considered abnormal. For instance, shaky or doubtful signature and/or feeble or uncertain mind of the testator are considered suspicious. There may also be issues if there is exclusion of some legal heirs. In many cases, it may be beneficial to create a Settlement Deed instead of a Will, which may eliminate issues such as establishing if this was the last Will. Taking the help of a lawyer in drafting the Will can go a long way in smoothing the probate later.
Another common issue is the Will not specifying the executor. Probate can only be granted to the executor appointed and if one is not mentioned, before starting the probate process, an application must be made to appoint the same by the court. Hence, including this in the Will is a good practice.
The author is an independent financial consultant
