PROBATE
A probate is an official proof of a will and it provides legal character to a will.
According to Indian Succession Act 1925 ‘Probate’ is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’. It is the administration of a deceased person's will and in case there is no will then it is the administration of the property/estate of a deceased person.
A probate can be granted with or without a will. When a will is authentified in the concerned court then probate is issued to the executor. Probates authorises the executor of the will to execute it, means to distribute the property to the beneficiaries in the same manner as the testator wished in his will. In case there is no will then an administrator is assigned.
One may apply for probate after seven days of the Testator’s death. The application for probate is generally presented to the High Court. When the will is verified, the court retains the original document and issues the executor with a certificate certifying its authenticity (the probate) as well as a copy of the will.
Note- A general notice is issued by the court to the public and when no objection is raised against it then only a probate is issued.
The executor looks if there are any debts in name of the testator. The debts (if any) are paid off the total value of assets, then the remaining value is distributed to the beneficiaries. In case if debts surpass the value of assets, then the application of probate is not generally filed.
Why is it important?
• Obtaining a probate is advisable, in cases where there is a probability of the validity of the well-being contested in future, on any ground
• It gives a legal recognition to the will for the transfer of property.
• It is not mandatory for property above Rs1 crore. However, it is recommended to grant a probate in case any issues arise.
When there is no will
When the will presented to the court has been deemed to be invalid, the court tries to distribute the property in accordance with codified laws.
The court appoints an administrator whose primary function is same as an executor i.e.: to distribute the testator property to its legal heirs after paying off the outstanding debts if any.
The Supreme Court in its judgment dated 19 May 2020 stated that if multiple suspicious circumstances surround the execution of a will, a combined effect of those circumstances can be enough to deny the grant of a probate.