Probate- A will is not enough!!

An individual unfamiliar with the provisions of The Indian Succession Act, 1925, might assume that a registered will is sufficient to ensure the distribution of their assets as desired. A will may encompass various assets and properties located across different regions within the country or even internationally. Therefore, it is crucial to understand the steps required to ensure the proper execution of a registered will without unnecessary delays.

It is noteworthy that a significant number of individuals in India die intestate, complicating the distribution of their assets. This often results in family disputes and prolonged, costly litigation. To avoid such outcomes, every individual needs to comprehend the concept and procedure of “Probate,” which can prevent objections in the asset distribution process. Probate is optional in some cases but mandatory in others. Let us examine the procedure in detail.

Probate — Mandatory Circumstances

In India, probate is mandatory under the following conditions:

1. If the will is executed in the cities of Kolkata, Chennai, or Mumbai.
2. If the will pertains to any immovable property in Kolkata, Chennai, or Mumbai.

A probate suit must be filed with the appropriate court to authenticate the will. This requirement applies regardless of whether the will is registered.

Probate Procedure

Probate must be obtained from a court of competent jurisdiction. Under Section 264 of the Act, a District Judge exercises jurisdiction and similar powers concerning the granting and revoking of probates as in any civil suit. High Courts also hold concurrent jurisdiction in probate matters. However, apart from the High Courts of Kolkata, Chennai, and Mumbai, other High Courts may receive probate applications only if authorized by an official state gazette notification under Section 300(2). High Courts may also appoint judicial officers as District Delegates to handle non-contentious probate cases.

Essential Documents

• Original will and codicils (if available)
• Death certificate of the testator
• List of legal heirs/beneficiaries and assets

Legal Opinion

To mitigate family disputes and avoid costly litigation, the executor should obtain probate, even if it is not mandatory in their case. Probate adds a layer of protection and safeguards against future objections. Alternatively, family members may opt for a “Family Settlement.” This involves all beneficiaries reaching an agreement, drafting a family settlement, and getting it

registered by the court. Such an agreement is recognized and valued by the court. However, it is imperative to ensure that all necessary legal requirements for a valid contract are met in the family settlement.

In conclusion, understanding the nuances of probate and its mandatory requirements, along with considering family settlements where appropriate, can significantly streamline the asset distribution process and prevent potential disputes and litigation.

By Pallavi Prakash

Email: [email protected]