How to Ob­tain a Pro­bate of a Will

Consumer Voice - - Bfsi Guide | Where There Is A Will -

It is the copy of the will which is given to the ex­ecu­tor (is some­one who is re­spon­si­ble to ex­e­cute the will) to­gether with a cer­tifi­cate granted un­der the seal of the court and signed by one of the regis­trars, cer­ti­fy­ing that the will has been proved. A pro­bate can be granted only to the ex­ecu­tor ap­pointed by the will. The ap­pli­ca­tion for a pro­bate shall be made by pe­ti­tion, along with a copy of the last will and tes­ta­ment of the de­ceased, to the court of com­pe­tent ju­ris­dic­tion. The copy of the will and grant of ad­min­is­tra­tion of the tes­ta­tor’s es­tate to­gether form the pro­bate.

The pro­bate is con­clu­sive ev­i­dence of the va­lid­ity and due ex­e­cu­tion of the will and of the tes­ta­men­tary ca­pac­ity of the tes­ta­tor. The pro­bate court (whether it is the dis­trict court or the high court) has been granted and con­ferred with ex­clu­sive ju­ris­dic­tion to grant pro­bate of a will of the de­ceased. A fixed per­cent­age of the to­tal value of the as­sets is charged as court fee for ob­tain­ing a pro­bate, which dif­fers from state to state. The pro­bate granted by a court is a judge­ment in ‘rem’ and is bind­ing not only on the par­ties but also on the en­tire world.

If There Is No Will

When a Hindu male dies in­tes­tate, his prop­erty de­volves around his le­gal heirs. Sec­tion 10 of Hindu Suc­ces­sion Act, 1956, gives in de­tail the list of Class I heirs who are to be given first pref­er­ence while di­vid­ing the prop­erty of the de­ceased. Rule 1 of this Sec­tion pro­vides for a share of prop­erty for the widow of the de­ceased. Rule 2 pro­vides for a share each for the sur­viv­ing sons and daugh­ters and the mother of the de­ceased. How­ever, if there are no claimants, then the prop­erty gets vested with the re­spec­tive state gov­ern­ment where the prop­erty is lo­cated.

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