Why Is It Important To Obtain A Probate For A Will?

Making a Will not only ensures that your wishes are respected once you are gone, but without a carefully prepared Will, your investments and inheritance planning could also fall apart. Therefore, the law, within its framework, tries to honour the Will of the person who has made it with complete freedom and knowledge. It is here that it becomes necessary to have a probate to prove the existence and validity of a Will. 

It is well-known that proving the authenticity of a Will is a recurring topic for decision in courts, and there are a large number of judicial pronouncements on the subject. So, one of the ways to avoid the hustle-bustle or overwhelming situation of proving the last wishes of the deceased in the never-ending court proceedings is to obtain the probate from the appropriate court. 

What Is A Probate?

A probate is issued by the court, when a person dies testate i.e., having made a Will. A probate is a grant or certificate given by the high court of competent jurisdiction that serves as conclusive evidence that there are no suspicious circumstances like fraud, coercion, among others, surrounding the Will, and that the Will was duly executed by the testator (deceased), and attested by witness. 

Significance Of Probate
 
A probate ensures a seamless transfer of the assets to the legal heirs and/or beneficiaries of the deceased. The probate authenticates that the Will is the last Will and testament of the Testator, and such a grant by the court naturally introduces an element of solemnity in the decision of the court regarding the wishes of the testator and the authenticity of the Will. 

It is a function of the court to see whether the Will has been duly executed, whether the testator at the relevant time was in a sound and disposing state of mind, and whether the testator had understood the nature and effect of such disposition, and put his signature and/or mark to the document out of his free will and volition. 

Is Probate Mandatory?

A probate is mandatory only if the Will or codicil has been made in any of the three Presidency towns i.e., Kolkata, and the municipal limits of metro cities of Chennai and Mumbai, or, if the immovable property is situated therein. Else, a probate is optional. However, there is no restriction in law to get a probate of a Will, even if it is not mandatory. 

The process to get probate of a Will

1. As a first step, the administrator or executor appointed by the testator under the Will must approach the court with the application to receive the probate. While it is a common practice to appoint friends and family as the executors of the Will, as people may naturally trust them more, but there have been an increase in professional executorship, where a trained professional may take care of the administrative difficulties of getting a probate. However, in the absence of the executor being named in the Will, the legatees or the beneficiaries under the Will could also seek probate of the Will.

2. In the application for a probate, the executors need to establish the following:
a. Facts of death of the testator with proof, which is generally done with the help of a death certificate issued by the local authorities. 
b. The Will produced before the court is the last Will of the testator. 
c. The submitted Will was validly executed by the testator. 

3. Once the application is submitted to the court, the court issues the notice to the next of kin to file their consent for the grant of probate, and the public at large to file objections to the grant of probate in favour of the executor named in the Will. 

4. If objections are filed – called as “caveat application” – against the validity of the Will and grant of probate, both parties have to lead evidence for and against the grant of probate, and the case is decided accordingly. 

5. There could also arise grounds challenging the validity of Will or grant of probate. The common grounds for challenging a Will are fraud, coercion, undue influence, suspicious nature, lack of due execution, lack of testamentary intention, lack of testamentary capacity, lack of knowledge, and forgery. 

6. Since the probate is granted by a high court, one has to pay a court fee, based on the value of the assets, which are subject matter of the petition. The court fee varies from state to state. In the state of Maharashtra, depending on the slabs, it is subject to a maximum of Rs. 75,000 while in Chennai, the maximum slab is Rs. 25,000. 

If it is found that granting the probate would do justice to the intention of the testator, then the probate is granted to the executor under the seal of the competent court. This ensures the due execution of the Will, which to a great extent reduces the discrepancies and suspicions associated with a Will. A probate cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals.

The author is AVP, succession planning, Emkay Wealth Management

(Disclaimer: Views expressed are the authors’ own, and Outlook Money does not necessarily subscribe to them. Outlook Money shall not be responsible for any damage caused to any person/organisation directly or indirectly.)