PROBATION OF A WILL IN INDIA

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In India, there are two ways to transfer inheritance. The first way is through a Will, and the other is without a Will, where equal distribution occurs depending on the religion. The probation of Will in India helps to validate it legally, which comes into action immediately after it is certified with a court seal.

A Will is a formal legal document that the testator or testatrix uses to outline their intentions and preferences for their possessions, which take effect upon their death. In India, a testator or testatrix may lawfully give any relative, friend, or other person their property with a probate Will. The legal worth or credibility of a Will is increased in India through the probationary procedure, as attested to by the witness attestation and the testator's signature.

What is the Probation of Will?

• Probation of Will in India is defined as the copy of the Will, which is certified with a court seal of competent jurisdiction where the administrative authority of the estate of the testator is granted.
• A Will is made to express the last wishes of an individual towards their assets. The person who owns the assets and makes the Will is known as a testator/testatrix. The Will can only be revoked during their lifetime.
• The Will contains the name of the persons who execute it, and they are known as executors of the Will.
• The probation of Will in India is granted only to the Executor of the Will, and it is crucial if there are multiple assets involved in different states.
• The probation of Will in India establishes its authenticity to make it legally valid, and grants access to the testator to distribute the property between designated beneficiaries and heirs.

What is the duration of Probation of Will in India?

• The Executor can apply for probation of Will in India after a week from the testator/s demise. The procedure of probation of Will in India can take up to 6 to 9 months to complete.
• In case of any objection from the public or third parties, the probation can take even two years to reach any final decision. 
• The waiting period of probation of Will in India can last longer during objection in regards to its seriousness.
   

What are the situations where Probation is Mandatory?

According to the Indian Succession Act 1925, the probation of Will in India is mandatory if made by a Hindu, Sikh, Jain, or Buddhist who resides in the geographical areas of West Bengal, Chennai, and Mumbai.

It is noted that even if the Will does not mention any immovable property, the people residing within these areas have to apply for probation of Will in India.

Other than these limits, the probation of Will in India is not compulsory. The probation is not restricted by law, but it is advised to apply for probation of Will in India to make it credible and valid in the future to settle any objections that may arise.

Role of Executor of a Will

• The Executor is the person whose name is mentioned in the Will to execute the distribution of assets between the heirs or beneficiaries according to the deceased person’s wishes.
• The probation of a Will in India does not make it necessary to name an executor in the Will, but it is advisable to do so. The Executor’s job is to ensure proper interpretation and distribution of assets among the heirs.

Applying for a Probate

The first step in requesting a probate is drafting a Will. Probate can only be requested by executors whose names appear in the Will. To be granted probation, they must file an application under seal with the court. The application for probation is granted to each Executor jointly if there are many of them.

In case of the absence of executor names, the court issues a letter of administration. Sometimes Inherent tax needs to be paid for the Will.

What happens when the Executor’s name is not mentioned in a will?

• In the event that a Will does not include the name of the executor, the legal heirs may designate a substitute. The designated person shall have the power to allocate the assets in accordance with the terms specified in the Will.
• If the heirs are not able to choose an individual who can be appointed as an executor, then any one of them may appeal in court to appoint one.

Conclusion

There are a number of significant aspects to the Indian Will-making and probate procedure that need to be properly considered. It is important to analyze the reasons for contesting the Will, and anyone with any questions can get online legal counsel. The purpose of a Will is to make sure the testator or testatrix's wishes are followed when dividing up property among the successors.

Posted On: 2024-04-15