Probate

Understand the legal process. Establish the Will. Administer the estate with clarity.

When a person passes away leaving a Will, their family may need to establish its validity and obtain the legal authority required to administer the estate. Depending on the applicable law and circumstances, this may involve obtaining probate or another appropriate grant of representation.

RiteWill helps individuals and families understand estate-planning and succession procedures, organise relevant information, and prepare for the steps involved in protecting and transferring their legacy.

What is probate of a Will?

Probate is a formal grant issued by a competent court to an executor appointed under a Will. It establishes the executor's authority to administer the estate in accordance with the Will and applicable law.

The process generally involves submitting the Will and a petition to the court, providing the required supporting information, complying with procedural requirements, and addressing any objections.

Probate is different from simply possessing a Will or registering it. A Will records the testator's wishes, while probate provides formal legal authority to the executor where the law requires and the court grants it.

Is probate compulsory for every Will in India?

No. Probate is not compulsory for every Will in India. Whether it is required depends on the applicable succession law, the nature of the Will, the relevant jurisdiction, and the circumstances of the estate.

Why is probate important?

Probate can help establish the executor's legal authority and facilitate the administration of an estate where a court grant is required. It may help to:

• Establish the Will through the applicable court process.
• Authorise the executor to administer the estate.
• Facilitate certain transactions involving banks, financial institutions or other authorities.
• Provide a judicial process for examining objections to the Will.
• Support the orderly administration and distribution of estate assets.

Probate does not automatically resolve every dispute relating to ownership, property title, liabilities or competing claims. Such matters may require separate legal consideration.

When is probate required?

The need for probate must be assessed under the applicable law and the facts of the case. Probate may be required in circumstances covered by the relevant statutory provisions. It may also be necessary to establish the executor's authority for particular transactions.

Before applying, it is important to consider:

• The applicable provisions of the Indian Succession Act, 1925.
• The testator's personal law, where relevant.
• The nature of the Will and the circumstances in which it was executed.
• The location of the estate and the court having jurisdiction.
• Any specific legal requirements applicable to the assets involved.

A bank or other institution requesting probate does not, by itself, establish that probate is legally compulsory in every circumstance. The applicable law and the nature of the transaction should be examined.

Who can apply for probate?

Under Section 222 of the Indian Succession Act, 1925, probate is granted only to an executor appointed by the Will, expressly or by necessary implication.

The executor named in the Will

The executor is the person appointed by the testator to carry out the instructions contained in the Will and administer the estate. Where probate is applicable, the executor ordinarily files the petition before the competent court, along with the original Will and the prescribed supporting documents.

What if no executor is appointed?

If the Will does not appoint an executor, or no executor is able and entitled to act, an eligible person may need to apply for letters of administration with the Will annexed rather than probate.

A beneficiary does not automatically become an executor simply because they inherit property under the Will. Eligibility for the appropriate grant depends on the applicable law and circumstances.

How do you obtain probate?

The process generally involves the following steps.

Step 1: Review the Will

Locate the original Will and any codicils. Identify the executor, beneficiaries, estate assets and relevant provisions.

Step 2: Determine whether probate is required

Obtain appropriate legal guidance to establish whether probate is mandatory, advisable or unnecessary in the particular circumstances.

Step 3: Identify the competent court

Determine which court has jurisdiction based on the applicable law and relevant facts, including the deceased person's residence and the location of the estate.

Step 4: Prepare the petition

Prepare the probate petition with the particulars and supporting documents prescribed by the applicable court rules.

Step 5: File the application

Submit the petition, the Will and the required supporting documents, together with the applicable court fees.

Step 6: Complete the court's procedural requirements

The court may direct notices to interested persons, issue a public citation, examine evidence or require additional documents.

Step 7: Prove the Will and address objections

The applicant must satisfy the applicable legal requirements. If objections arise, further evidence and hearings may be necessary.

Step 8: Obtain the court's grant

If the legal requirements are satisfied, the court may grant probate. Where probate is not the appropriate remedy, another grant may be considered under the applicable law.

Does the Will have to be proved in court?

Where probate proceedings are instituted, the applicant must satisfy the court that the Will is legally capable of being admitted to probate.

For an ordinary Will governed by Section 63 of the Indian Succession Act, 1925, the testator's signature or mark and the prescribed attestation requirements must generally be established.

Under the applicable law of evidence, proof ordinarily includes calling at least one available and competent attesting witness to establish due execution and attestation.

The court may also consider other admissible evidence where relevant, including evidence concerning the testator's signature, capacity or the circumstances surrounding execution.

Important: producing a signed or registered Will does not automatically prove its validity. The applicable legal requirements must still be satisfied.

What happens if the witnesses to the Will cannot be found?

The unavailability of an attesting witness does not automatically invalidate a Will. However, the Will must be proved through the procedure permitted by law.

If one attesting witness is available

The ordinary rule is to call at least one available and competent attesting witness to prove execution and attestation, subject to the applicable law.

If both witnesses have died or cannot be found

The applicant may rely on the alternative evidentiary procedure prescribed by law.

Section 69 of the Indian Evidence Act, 1872, addressed proof where no attesting witness could be found. For proceedings governed by the Bharatiya Sakshya Adhiniyam, 2023, Section 68 addresses this situation. In general, the applicable provision requires proof of an attesting witness's handwriting and proof of the testator's signature or handwriting.

The appropriate evidence and procedure depend on the circumstances and the law governing the proceedings.

If a witness denies signing the Will or cannot remember its execution

Section 71 of the Indian Evidence Act, 1872, and Section 70 of the Bharatiya Sakshya Adhiniyam, 2023, address situations where an attesting witness denies or does not recollect execution. Other legally admissible evidence may be considered as permitted by the applicable provision.

An applicant should not assume that alternative evidence will automatically be accepted. The court must be satisfied that the legal requirements for proving the Will have been met.

In whose favour is probate granted?

Probate is granted in favour of the executor appointed under the Will, subject to the applicable law.

For example, if a Will appoints a daughter as executor and leaves a house to her brother, the daughter may apply for probate in her capacity as executor. The brother is the beneficiary of the house. Probate is not granted to the brother merely because he inherits the property.

Does probate make the executor the owner of the estate?

No. Probate gives the executor the authority conferred by the grant. It does not make the executor the beneficial owner of all the estate's assets.

The executor must administer the estate in accordance with the Will and applicable law, including addressing lawful liabilities and distributing assets to the persons entitled to them.

What documents are required?

The documents required vary depending on the court, the estate and the circumstances of the application. Commonly required documents may include:

• Original Will and any relevant codicils.
• Death certificate of the testator.
• Identity and address proof of the applicant.
• Details of the executor and beneficiaries.
• Information concerning the deceased person's assets and liabilities.
• Details relevant to the court's jurisdiction.
• Evidence of execution and attestation, where required.
• Prescribed affidavits, valuation statements and other supporting documents.
• Court fees and filing documents.

The list is indicative, not exhaustive. The relevant court's requirements should be verified before filing.

How long does probate take?

There is no single timeline applicable to every probate matter. The duration may depend on the court's workload, completeness of the application, service of notices, availability of evidence and whether objections are raised.

An uncontested matter may proceed differently from a contested case involving disputes about authenticity, testamentary capacity, undue influence or execution formalities.

What does probate cost?

The cost may include applicable court fees, legal and professional fees, document preparation, certification, translation and other expenses.

Court fees can vary according to the relevant state legislation, applicable rules and the nature of the application. There is no single universal probate fee for every estate in India. Applicants should verify the current fee schedule and obtain a case-specific estimate from a qualified legal professional.

What happens if probate is not obtained?

The consequences depend on whether probate is legally required.

Where probate is not compulsory, the absence of a probate grant does not, by itself, make the Will invalid. The Will may nevertheless need to be proved when required by law or in a relevant legal proceeding.

Where probate is required, the executor may face difficulties establishing the necessary authority or completing particular transactions without the grant.

If no executor has been appointed or the named executor cannot act, an eligible person may need to consider letters of administration with the Will annexed.

Can a Will be challenged during probate?

Yes. An interested person may raise legally recognised objections to a probate application. Objections may concern:

• Whether the Will was properly executed and attested.
• Whether the testator had the required testamentary capacity.
• Whether fraud, coercion or undue influence affected the Will.
• Whether the Will is authentic or a later Will exists.
• Whether the applicant is entitled to the grant sought.
• Whether the court has jurisdiction.

The court considers the evidence and applicable legal principles before deciding whether to grant probate.

Probate and letters of administration

• Probate: a court grant issued to an executor appointed under the Will.
• Letters of administration with the Will annexed: a grant that may be available to an eligible person where the deceased left a Will but probate cannot appropriately be granted to an acting executor.
• Letters of administration in an intestate estate: a grant that may be relevant when a person dies without a valid Will and an eligible person seeks authority to administer the estate.

The appropriate process depends on the facts and the applicable law.

What should you do before applying?

• Locate the original Will and any codicils.
• Obtain the death certificate.
• Identify the executor named in the Will.
• Prepare an initial list of estate assets and liabilities.
• Confirm the appropriate court and jurisdiction.
• Establish whether probate or another grant is required.
• Identify beneficiaries and potential objections.
• Obtain guidance on the required documents, fees and filing procedure.

Early preparation can help identify missing information and reduce avoidable delays.

Frequently asked questions

Is probate required for every Will in India?

No. The requirement depends on the applicable law, the nature of the Will and the circumstances of the estate.

Can a beneficiary apply for probate?

Probate is granted to an executor appointed under the Will. Where no executor can act, an eligible person may need to seek letters of administration with the Will annexed or another appropriate grant.

Can probate be obtained without the original Will?

The original Will is ordinarily required. Limited circumstances may permit a copy, draft or statement of contents to be considered under the applicable law. This depends on the facts and legal requirements.

Is a registered Will automatically valid?

No. Registration does not automatically establish that all legal requirements for execution and proof have been satisfied.

Can probate be obtained if family members disagree?

An objection does not automatically prevent an application. However, the matter may become contested and require evidence and judicial determination.

Does probate expire?

A probate grant does not ordinarily expire simply because time has passed. However, it may be affected by legal proceedings, including revocation where legally justified.

How RiteWill can help

Estate administration involves important documents, family responsibilities and legal procedures. Understanding the process can help families prepare and make informed decisions.

RiteWill helps individuals and families organise estate-planning information and understand the steps involved in protecting and transferring their legacy. Our platform can support the preparation and organisation of relevant information, subject to the services available. It does not replace a court, determine the legal validity of a Will or guarantee that probate will be granted.

Legal information notice: this page provides general information about probate and estate administration in India and is not a substitute for legal advice. The applicable law, jurisdiction, court procedure and individual circumstances should be reviewed by a qualified legal professional before filing an application or acting on a Will.