A Will is a legal document by which person referred to as testator declares in the document the name of one or more persons who are competent to manage and transfer the estate of testator after his death. The person making the will should be above the age of 21 years. The will is the statement made by a testator in the written form describing the manner in which his property must be distributed after his death. The person in whose favour the testator bestows the benefits is known as beneficiary. The person who executes the will of the testator is known as Executor. A will comes into force after death of the testator and if person dies without writing any will then he is said to have died intestate.
The term “Will” is defined in the Indian Succession Act, 1925 which means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. If no executor is named in the will then the relatives of deceased or the court can appoint an executor.
The word ‘Probate’ means to prove; so, probating a will means proving legality and validity of a will. The Indian Succession Act defines probate as a ‘copy of will certified under the seal of court of competent jurisdiction with grant of administration of estate of testator’. It is issued to executor f will to authorize execution of will.
To issue a probate of will, the executor applies for probate of will in the court. The application shall be filed in District Court in whose local limits jurisdiction the estate of the deceased testator falls and if the value of the estate is high then the application shall be filed in the High Court. The application shall be filed after 7 days of death of testator.
Following documents should be attached while submitting the probate application which are as follows:-
- A document which proves that the will is genuine and is the last will made by testator
- A document which proves death of testator
- A document which proves that the will is validly executed in clear conscience of the testator
- A document which shows the value of estate of deceased testator
- A proof that the petitioner is named as the executor or beneficiary in the will
Once the application along with the document is submitted in the court, it will be verified by the authorities and the letters or notifications will be sent by it to the nearest family member of the deceased intimating them regarding the probate. A general notice is also published for the public to view the issue of probate and giving them an opportunity for raising any objections regarding grant of probate. A notice is published only when court fees depending upon value of immovable property is paid. The probate is issued if no objections are received from kin or any general public.
When probate of will is issued the original copy is retained by court and it provides the executor with a certificate proving that will is genuine and also a copy of will.
This post is written by Ankita Goyal of Manipal University, Jaipur (2020). Dial 99888-17966 for more info.