It is not only important to make a Will to ensure that your wishes are followed after you pass away, but without a carefully drafted Will, your estate planning and investments could be at risk. Due to this, the law tries to deal with Wills in a way that honors the freedom and knowledge of the person who made them. For a Will to be proven valid and valid, it needs a probate.
A large number of judicial pronouncements are available on the subject of proving the authenticity of a Will, which is a recurring topic for decision in courts. Probate is one way to avoid the never-ending court proceedings of proving the last wishes of the deceased in the hustle-bustle.
What Is A Probate?
Courts issue probates when people die testate, that is, having made a will. A probate of will is a grant or certificate given by the high court of competent jurisdiction that serves as conclusive evidence that there are no suspicious circumstances like fraud, coercion, among others, surrounding the Will, and that the Will was duly executed by the testator (deceased), and attested by witnesses.
Significance Of Probate
By probating a will, the assets of the deceased are transferred seamlessly to their legal heirs and/or beneficiaries. In regards to the wishes of the testator and the authenticity of the Will, the probate confirms that the Will is the last Will and testament of the testator, and such a grant by the court naturally introduces a sense of solemnity into the court’s decision.
Probate confirms that a Will is the final Will of the Testator.
It is a function of the court to determine whether the Will has been duly executed, if the testator at the relevant time was in a sound and disposing state of mind, whether the testator understood the nature and effect of the disposition, and if he signed and/or marked the document with his free will and volition.
Is Probate Mandatory?
Probate is mandatory only in Kolkata, Chennai, and Mumbai, as well as in the municipal limits of the three Presidency towns. In any other case, there is no need for a probate. Probate of a Will is not mandatory in law, but there is no restriction on it.
The process to get probate of a Will
- An application for probate must first be filed with the court by the administrator or executor named under the testator’s Will. While it is a common practice to appoint friends and family as the executors of the Will, as people may naturally trust them more, there have been increases in professional executorship, which includes taking care of the administrative difficulties that come with probate. Legatees or beneficiaries under the Will could also seek probate if no executor is named in the Will.