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Will has been defined under section 2(h) of the Indian Succession Act 1925. The definition given under the section defines Will as follows: “Legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death”. In simple language, a Will is a legal instrument. Through a Will a person disposes off his property. He does this in the name of his relatives, friends or any other person.
Generally, Will takes effect after the death of the testator/testatrix (person making the will). Although, in some cases transfer of the property happens in the lifetime of the testator as well. The validity of the will is proved by the signature of the testator and the attesting witnesses of the will but if there is a probate of will, then it increases the credibility of the will.
Probate is a certified copy of the Will which is the official proof. The executor issues it with a seal of the court that authorises him to execute or implement the bill. Will Probate adds a legal character to the will.
In other words, will probate is a legal process which facilitates the deceased person to distribute his estate properly amongst his heirs and designated beneficiaries. It also provides for paying off the debt owed to the creditors.
Probate can be applied for after 7 days of the death of the testator. The entire process of Probate of Will takes at least six to nine months to complete. However, if there is any objection to the public regarding the Will, then the Probate of Will process can even take up to 2 years to get completed, depending upon the seriousness of the objection.
The word ‘Probate’ means to prove or validate something. It is a procedure for court approval of the Will as the valid and last Will of the deceased testator. According to the Indian Succession Act, 1925, “Probate of will, when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.”
It means that when a Will is probated, it gets officially certified with a seal of the court and provides the authority to the executor to appropriately distribute the assets of deceased testator and also to pay off bills and creditors from that estate.
No, it is not mandatory to probate a will as there are various circumstances which make the probate of will in a certain case unnecessary but rules can vary from state to state. When the assets are owned by people in joint names with their children, spouses or other person, then it passes automatically by the operation of law to the surviving owners and there is no requirement of probate of Will in distributing the property.
However one requires a probate when the existing Will has a problem. Or, the testator predeceases the beneficiaries named in the probate. Or, the Will has no beneficiary named in it or when the deceased testator solely owns an estate.
The procedure for probating of will is divided into four simple stages:
The first step involves making of application to the District Judge through a probate petition which must be duly signed and verified by or on behalf of the applicant. The probate petition should be in a prescribed format under Code of Civil Procedure, 1908 and it shall be done after 7 days of testator’s death.
The second step is to send the application to the High Court, under whose jurisdiction property falls. Then a lawyer shall prepare the application, in some cases lower court can also accept the application.
One needs to submit certain documents that can verify the genuineness of the will, death certificate and other documents. These will prove that the testator had free will.
When the court receives the application, it verifies all the details. Then it invites the nearest kin of the deceased for claiming the probate. Finally, it showcases the invitation letter at prominent places for invitation of any objection. If after 30 days, the court files no objection, the issuance of the probate is complete.
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What does it mean to probate a will?
Probate is a court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the decedent's assets, paying his final bills and taxes, and distributing the remainder of the estate to his rightful beneficiaries.
Who needs to file probate?
If you end up acting as executor, you'll need to: - File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. - You will also need to file the death certificate and the original will (if there is one) with the court.
Why is probate necessary?
Probate is necessary when an estate's assets are solely in the deceased's name. An estate must go through probate to transfer the property into the name(s) of any beneficiaries.
Do you have to apply for probate when someone dies?
You do not always need probate, but if you are named in someone's will as an executor, you may have to apply for probate. Probate is the legal document that gives you the authority to share out an estate of the person who has died according to the instructions in the will.
What assets are subject to probate?
Probate assets are any assets that are owned solely by the decedent. This can include Real property that is titled solely in the decedent's name or held as a tenant in common. Personal properties such as jewellery, furniture, and automobiles can be included too.