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A Will is a document which divides and transfers property after one’s death to the people or institutions chosen in the document. It is generally made to distribute the property and assets of the person. A will can also be made in case where there are children (minor), and the question of their guardianship comes up.
Another part of the process of will is the process of probate. The legal process that takes place after a person has died, to pay his lawful creditors and to transfer his assets to his beneficiaries is called probate. It is the certified copy will under the seal of competent court allowing the administration of the estate of the maker.
If no will has been made then the State will make the decision as to the distribution of property. Will ensures that the distribution of property happens according to the owners wishes.
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Generally, a probate is advisable in all cases and is necessary in cases of will dealing with immovable property. According to the Indian Succession Act, 1925, if a will has been made by a Hindu, Sikh, Jain, Buddhist within the territories of formerly unpartitioned Bengal, or territories falling within the jurisdiction of High Courts of Madras or Bombay, then a probate is compulsory.
Further, if any will has been made in the rest of India, but with regards to property within the territory of formerly unpartitioned Bengal, or in territories falling within the jurisdiction of High Courts of Madras or Bombay, then too a probate is compulsory.
Moreover, no executor can exercise their right unless the Court of competent jurisdiction has granted a probate. This, however, is compulsory only in the above two situations.
It is also generally advisable to make a probate in cases where there is a problem with the will or in case the beneficiaries of the will have died before the testator.
Thus, apart from the above criteria it is not compulsory to have a probate, and a will can be executed without one too.
Primarily it is necessary to understand that not all wills need to be registered. Registration of a will simply means that the maker of the will and the witnesses have appeared before the registering authorities and that their identity has been verified.
Further it should be noted that there is no provision laid down in law for compulsory taking a probate for any registered will. A probate is nothing but the verification form genuineness of the will. It is not always necessary to get a probate order for a will. If there is no dispute between the legal heirs as to the contents of a will they may choose to forgo a probate.
It is therefore not necessary for a registered will to have a probate, though one may be applied for.
The Indian Succession Act, 1925 has no provision making it compulsory to take a probate order in case of an unregistered will. Registration of instruments is governed by the Registration Act, 1908. Under this Act, a will is not needed to be registered, and an unregistered will is also valid.
However, the Government of Delhi has on its circular issued that an unregistered will is not actually a proof of ownership. Therefore, in cases of wills being implemented in the NCR of Delhi it is necessary to get a probate to implement and to execute an unregistered will.
It is not necessary that a registered will is the last will of the testator. Registering a will does not bar another will from being made afterwards. Such a will maybe unregistered yet valid ( has been made by the testator of free will and attested by two witnesses).
Further it may also happen that the registered will was made by fraud, or undue influence, or any other reason which was not through the free will of testator.
In both such cases a registered will maybe challenged in court and it’s validity questioned.
According to the laws of the country, it is not necessary to go through probate if there is no dispute regarding will. However, going through a probate is preferable as it gives court certification to the validity of the will in question.
If, however one dies intestate it is frequently required that the legal heirs go through a probate to get the legal distribution of the property.
Therefore, legal heirs may opt not to go into probate for a valid will, but need to go through probate in case of intestate succession.
For more queries or confusion regarding the legal nitty gritty of the importance of will probate in India, ask for expert legal advice from us now!
Avoiding a probate may be done by three major ways. These are:
Thus, the above three ways are simple ways to avoid a probate on a will.
Written by: Aman Kumar Saini