Probate of Will in India: Procedure and the Key Amendment in India
Probate is a legal certification granted by a competent court confirming the validity of a deceased person’s will and authorising the executor to administer the estate. Governed primarily by the Indian Succession Act, 1925, probate ensures orderly transfer of property and protects beneficiaries against future disputes.
What Is Probate and When Is It Required?
Probate establishes the genuineness of a will and the authority of the executor. Traditionally, probate was considered mandatory in several cases, especially involving immovable property. However, the requirement of probate depends on religion, location of property, and place where the will is executed.
Under the Indian Succession Act, probate is compulsory only for wills made by Hindus, Buddhists, Sikhs, or Jains within the territorial limits of the former Presidency towns—namely Mumbai, Chennai, and Kolkata—or where the immovable property is situated in these areas.
Important Amendment and Current Legal Position
A significant legal development has clarified that registration of a will and obtaining probate are not mandatory in all cases. Courts have consistently held that:
- Registration of a will is optional, not compulsory.
- Probate is not mandatory for wills executed outside presidency towns, even if the property is located elsewhere in India.
- For properties outside presidency towns, a will can be acted upon through mutation, succession certificate (for movable assets), or letters of administration, depending on the facts.
This interpretation has effectively reduced procedural burden and litigation for legal heirs, especially in non-metro jurisdictions.
Probate Procedure in Brief
A probate petition is filed before the jurisdictional civil court by the executor named in the will. The court issues notices to legal heirs and publishes a public notice inviting objections. If no objections are raised, probate is granted. In contested cases, the matter proceeds as a regular civil suit, requiring evidence and witness examination.
Why Probate Still Matters
Though not mandatory in all cases, probate provides conclusive legal proof of a will, protects executors from future challenges, and is often insisted upon by banks and financial institutions for high-value assets.
FAQs
1. Is registration of a will compulsory in India?
No, registration of a will is optional.
2. Is probate mandatory for all properties?
No, only for wills made within presidency towns or relating to properties there.
3. Can property be transferred without probate?
Yes, if probate is not legally mandatory in that case.
4. What is the limitation period for probate?
There is no strict limitation, but undue delay must be explained.
5. Is probate required for movable assets?
Generally no; a succession certificate is usually sufficient.
