Last Updated on May 5, 2018 by Legalseva.net
First Let us understand What is Probate? -Probate means copy of the WILL certified under the seal of a competent jurisdiction where the asset lies (mostly district court and then High Court) issued under Indian Succession Act, 1925.
An application issued to competent court of pecuniary jurisdiction (District Court or High Court) under section 57 and 213 of Indian succession act 1925 that WILL in question is a genuine one and free from any kind of suspicious circumstances. The genuineness of the WILL is assessed in the probate proceedings from the proof of death of testator as his last will. Mostly Probate Lawyers and Advocates of Chandigarh Panchkula Mohali will be able to assist you. Only after the Probate is granted, executor of the WILL be able to get its benefits or administer the assets coming henceforth.
Now who can execute it? – Only the executive appointed under the will can execute it i.e. on whose name the will is made and what all assets are transferred to him. It must be attested by competent witnesses in the presence of testator. Registration of will is not mandatory as per requirement of law. Indian Succession Act, 1925 applies to proving of a WILL in District Courts more often.
In what cases Probate is applicable?-
When the executor or intended beneficiaries want to transfer ownership of assets in their names. As such there is no Limitation to file probate proceedings in India but early you do more better it will be for you. In case of no executors of a will then simply apply for Letter of Administration (LOA) for issuance of certificate showing will is genuine and copy of the same.
How long does it take to Probate a WILL throughout in Chandigarh Panchkula Mohali?- Probate proceedings may last for just 3 months if no objections are there from legal hairs of the deceased or any liability claim from the general public. More than a year if the genuineness of a WILL is under challenge. So it all depends on the facts of the case.
Procedure to obtain Probate in India– Once the Probate application is submitted, notice to next of kin of the deceased is issued to file objections and Publication in news paper is made for the general public for filing of objections to satisfy any claim. In the proceedings, proof of death is to be proved, proof showing that it is the last will and duly executed in presence of witnesses who have seen the testator signing the WILL. If a person is not heard for seven years then he is presumed to be dead.
Importance of Probating a WILL– No government authority will transfer the assets in the name of Executor in records without a Probate from competent court which can be District Court or High Court. So, without Probate, property will stand in the name of deceased as applicable to Hindu, Sikh Jain, Buddhist and Parsis.
Is it necessary to probate a WILL? – Yes for transferring benefits of a WILL to its intended beneficiaries and that won’t happen until and unless probate is done.
Is there a difference between Probate a registered WILL or unregistered WILL?- No there isn’t any difference between Probate proceedings for registered WILL or unregistered WILL.
Do I have to pay the Stamp Duty?- Yes, a small portion (2-3%) of the estimated value of the assets have to be paid as Court Fee.
Also Read- WILL Registration Process in Chandigarh
FAQ’s
a. How much will a Lawyer charge to Probate a WILL– Lawyers don’t have any rate card but still it would start from somewhere 25k and up to lakhs if the assets involved are in crores and if there is resistance from other legal heirs then the fees is accordingly charged. Courts also charged a particular percentage as a court fee on the claims made by the executor or beneficiary of a WILL. Yes, Court fees is applicable in probate proceedings
b. Probate and Succession Certificate– Probate is applicable when the WILL is made for immovable and immoveable properties. Succession Certificate is required in cases without a WILL and for movable assets like Car, Jewellery, Bank accounts, lockers, Fixed Deposits without nominee. Letter of administration in cases when the WILL doesn’t name the executor or not made by the deceased person.
c. When Letter of Administration is required? – When the executor of WILL is not clear then the interested parties can apply to the court and on its discretion Courts may grant Letter of Administration to the most suitable one.
d. Conditions for a valid WILL– Time of Testator’s death, writing to the effect that it is the last WILL, Duly executed, Amount of assets coming to applicant’s name, Applicant named as Executor in WILL, Testator signing the WILL in presence of two witnesses and witnesses have seen testator signing the will.
e. Documents required- Death certificate in original along with copy of the WILL executed in clear circumstances showing Testator in good health, and finally the WILL in question is the last genuine WILL.
f. Can probate be applied for property outside State? – Yes it can be applied in the state where the deceased died or where property is situated.
g. No objection from other heirs? – If the other heirs don’t have any objection with the WILL, then they should submit it on the affidavit.
h. Importance of Probate? -It is important for management and distribution of a person’s estate after Testator’s death. Property devolves in favour of its intended beneficiaries.
i. Is court fee compulsory? – Probate is issued only if the court fees is paid depending on the total value of assets claimed in the probate application. WILL not required compulsory registration as per Registration Act 1908
j. Can a Court cancel probate? – Yes if fraud is played upon the court and pleadings are filed with dishonest intentions.
k. How much will be the Court Fee? – As per Court fees Act, it can be 2 to 3% but it varies from state to state. Chandigarh Panchkula Mohali follows different Court Fee Act.
l. When should we apply for Probate? – There is no such fixed period but one must check with the local Municipal act as there can be some rules or instructions notified but as early as you can do it is your benefit. For example Delhi Municipal Corporation has certain rules that you must check on the website.
m. Who can apply? – Only the executor of the WILL can apply or its beneficiaries.
n. What is Codicil to a WILL?- Testator intends to make changes to a WILL without changing the entire WILL, he can make by adding Codicil to a WILL. Codicil is executed in a same way as of a WILL. Codicil and WILL can be revoked/altered anytime in case of objections, citation of the consent to be displayed in Court. Only after that WILL comes to an effect.
Also Read- Property Transfer in Chandigarh Panchkula Mohali Zirakpur
Probate application is filed under section 374 in District Court or before High Court and objections are contested like a regular suit and decided in the same manner by delivering the judgment and decree in accordance with law.
It is important for you to engage top/best Probate/WILL lawyer of Chandigarh Panchkula Mohali who can prepare your probate application and cover all essential advice/opinion/estimates for high value assets.
In Chandigarh WILLs are registered at Sub Registrar office next to Estate Office Chandigarh. You may check out their website. Also now days, Chandigarh Administration accepts online appointments for WILL Registration in Chandigarh purposes. You can book your appointment online on this link:
Timings 9-11am & 2-3pm for Appointments. If you wish to see the format of probate of WILL, you can check it on Affidavitformhub.com
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