Probate under Indian Succession Act, 1925
✅ Probate under the Indian Succession Act, 1925
📘 What is Probate?
Probate is the legal process by which a court certifies the validity of a will left by a deceased person. It is a conclusive legal recognition that the will was executed properly and is genuine.
Under Section 2(f) of the Indian Succession Act, 1925, “probate” means a copy of the will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.
🧾 Key Sections of the Indian Succession Act, 1925 Relevant to Probate
| Section | Subject |
|---|---|
| 2(f) | Definition of Probate |
| 222 | Probate only to be granted to executor |
| 223 | Who cannot be an executor |
| 276 | Petition for probate |
| 278 | Application for letters of administration |
| 283 | Powers of the court |
| 291 | Powers of executor after grant of probate |
🧑⚖️ Who Can Apply for Probate?
Only the executor named in the will can apply for probate.
If no executor is appointed, the legal heir must apply for Letters of Administration instead.
📝 When is Probate Required?
Probate is mandatory in the following cases:
If the will is made by a Hindu, Buddhist, Sikh, or Jain and the property is situated in:
Mumbai
Kolkata
Chennai
If the will relates to immovable property situated within these cities, regardless of where the testator died.
In other parts of India, probate is not compulsory unless:
The will is contested, or
It is required for certain legal purposes like selling or transferring property based on the will.
📋 Procedure to Obtain Probate
Filing of Petition (Section 276)
Filed in the District Court or High Court (depending on jurisdiction)
Must include:
Copy of the will
Death certificate
Details of heirs and property
Proof that the will was duly executed
Notice to Public
Court issues notice to:
Next of kin
General public (via newspaper)
Allows objections to be filed (also called “caveats”)
Hearing of Objections (if any)
If someone contests the will, the case becomes a probate suit
Both parties present evidence
Grant of Probate
If no objection is raised (or if objections are dismissed), probate is granted
This legalizes the will and gives authority to the executor
📜 Effects of Probate
Conclusive proof of the validity of the will
Executor can now:
Collect assets
Pay debts
Distribute property as per the will
Probate is binding on all parties unless set aside by a higher court
⚖️ Key Case Law
Ishwardeo Narain Singh v. Kamta Devi (1954 AIR 280)
– Established that probate proceedings are civil in nature and the burden of proving the will lies on the propounder.
Anil Behari Ghosh v. Latika Bala Dassi (1955 SCR 270)
– Held that mere registration of a will is not proof of its genuineness; due execution must be proved.
🧮 Court Fees for Probate
Court fees for probate vary from state to state in India.
In some states (like Maharashtra or Delhi), it can range from 2% to 7.5% of the value of the estate.
🔑 Summary Table
| Aspect | Description |
|---|---|
| Definition | Legal certification of a will by the court |
| Who can apply | Executor named in the will |
| When required | Mandatory in Mumbai, Chennai, Kolkata for certain wills |
| Procedure | File petition → public notice → objections (if any) → grant |
| Effect | Will becomes legally enforceable |
| Court Fees | Varies by state, based on estate value |
Do write to us if you need any further assistance.
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