What is Probate of a will?

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A probate order by a court of competent jurisdiction refers to the copy of a will certifying
such will to be authentic and with a grant of administration to the testator’s estate. To
safeguard oneself from disputes that may arise with respect to inheritance of property,
probate must be obtained in case the will has not been registered.

A probate shall protect the beneficiaries interests as well as ensure that distribution of
property takes place in accordance with the testator’s intentions. This simple step can go a long way in minimizing disputes regarding transfer of property and payment of property taxes.

This entire process establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executor.

Probate does not decide title of the testator:

Once a  is granted by a competent court, it would become conclusive of the validity of the Will itself, but, the probate court cannot decide the title of the testator in the suit properties which can only be decided by the civil court on evidence.

It is true that the probate of granted by the competent court would be admitted into
evidence that may be taken into consideration by the civil court while deciding the suit
for title but it cannot be decisive for declaration of title and injunction whether at all the
testator had any title to the suit properties or not.

Also Read: Registration of Will.

Is Probate of a will compulsory?

Under Section 57 of the Indian Succession Act, the Will is required to be probated. The
transfer of property by inheritance takes place in three Metropolitan Cities i.e. Bombay,
Calcutta and Madras only by Letter of Probate. While in other cities, it can be on the basis of the documents in support thereof with an affidavit or declaration before the appropriate authority.

However it is always advisable to get the Will probated from a competent court and on the basis of such order, the property should be transferred in order to avoid any future litigation.

Once the Will is probated, the validity of the Will is confirmed by the Court. No heir will
be able to question the transfer or validity of the Will.

As far as the city of Delhi is concerned, the probate court is not the court of exclusive
jurisdiction where a Will can be proved.

Conclusion:

As stated above, it is compulsory to seek grant of Probate only in certain cases, whereas, it is not compulsory to seek grant of Probate in other cases. To find out more about probate write to us at easykanoon@gmail.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.