A Will is a document which divides and transfers property after the death of aperson. It is generally made to distribute the property and assets of deceased person. A will can also be made where there are children (who is minor not attained the age of 18), and the question of their guardianship raise up.Probate is another part of process of a Will. It is a legal process that takes place after the death of the person to pay his lawful debts and to transfer his assets to his beneficiaries/legal heirs is called probate. It is a procedure by which a will is approved by the competent court.Probate is issued to the executors of the will, the court authorize them with a seal of approval. If there is no executor of the will, only a simple letter of administration is issued by the court, and not a probate. A grant of probate by an invalid character under the will cannot be made valid.
The beneficiary or executor can apply to the competent court for the grant of probate. A probate can be granted when the will has been proved in accordance to the provisions of law. On the other hand, if the court found any suspicious elements, the probate, in that case, may not be granted.Further, no right as beneficiary or executor can be established in any Court of law unless there is Court of competent jurisdiction in India has granted Probate of the Will under which the right can beclaimed.For obtaining a Probate, the executor of the Will, can be filed a petition as a petitioner before the competent court through an advocate. After filing the petition the court asks the Petitioner/executor to establish the proof of death of the testator as proof that the Will has been validly made by the testator and that it is the last Will and testament of the deceased person. Thereafter the court gives a notice in the newspaper to invite public to raise objections, if any. If no objection is raised and the court is satisfied with evidence produced by the executor, Probate will be granted.
Generally,probates not require to be obtained in all cases.As per the Indian Succession Act, 1925, in certain cases it is necessary to obtain a probate.
- Where a will has been made by a Hindu, Sikh, Jain, and Buddhistin the areas of Bengal, Orissa, Bihar and Assam and within the local limits of the civil jurisdiction of the High Courts of Madras and Bombay then a probate is necessary.
- In case Wills are made outside these territories but the property is situated in territories it also requires a probate.
For applying a probate there are certain documents that are required:
- The will must be genuine and the will is made by the testator.
- Death certificate of testator.
- Title deed and documents pertaining to the immovable and movable property mentioned in the Will.
In case where the probate is not obtained in such a scenario the beneficiaries stand to lose their right over the inherited property and the executors of the Will do notable to obtain any action towards claiming ownership in the property.
On certain grounds the challenger can challenge the Probate of Will.
In order to challenge the probate of a will one need to gather the evidences that could satisfy the court that the probate issued was incorrect. Such an issue can be supported by the evidences such as medical documents or the signed physician’s statement for the medical conditions of the testator. Also listing witnesses that could state the conditions and behavior of both the testator and the executor or the beneficiary before the making or registration of the will could also be usefully in case of challenging the probate of the will. One can show that the executor is not capable of performing the necessary duties and is not suitable for the position granted by the testator in his will and the executor is not performing with bonafide intent. Moreover, the executor is careless and unable to manage the estate. Hence his removal as an executor on these grounds could be achieved.