Last Updated on June 10, 2024 by Satish Mishra
In India, property can be transferred either by WILL (testate) or succession (intestate) where no will is made. In case of succession, personal laws of Individual apply whereas for a WILL, it has to be duly executed and attested by witnesses without any fraud or undue challenge.
Please understand, Probate and Succession Certificate are two different things. Please don’t mix them or be confused in applying for them. The former is before High Court of State and the latter is before District Court of your city.
In this addition, we WILL cover property transfer through WILL (Whether Registered or Un-Registered), the property transfer through Succession Certificate be covered in next post. But before that let us understand what terms are before us while dealing transfers of properties in Punjab, Haryana and Chandigarh.
But before that understand this-
Both are open to be challenged and if objected, can be contested in Courts.
WILL- A WILL has to be signed by testator or his/her thumb impression should be taken up. It is not mandatory by law that it must be registered. Thus, making it optional but it is always better to register it with sub-registrar. Making a WILL is like a walk in the park and you can even make it online in just 5 minutes. Try LawRato’s services for this. It is mandatory for WILL to get attested by 2 witnesses who have seen Testator (maker of WILL) signing the WILL. A WILL should be clear and concise in terms of interest being transferred to legatee, in whose favour WILL is being made; the executor of WILL later. A WILL usually should be attested by disinterested witnesses in the WILL.
Q- How can WILL be used to transfer property?
Let us first understand these terms:
Probate – is the judicial process whereby a ‘WILL’ is proved in court, accepted as valid public document which is true and last testament of the deceased. The High Court or District Court (where estate is below 10K) grants probate and then executor can show the probate to authorities and transfer the WILL in his/her name.
Letters of Administration- If the WILL has failed to name any executor or trust to whom the estate should be transferred then the courts may appoint individuals connected with estate to look after the affairs of estate through Letters of Administration.
Codicil- It is a document that amends the previous WILL. It WILL explain what additions and alterations have been made to the WILL which is to be considered as the part of same WILL. Codicil comes in picture when testator wants to make changes in the WILL. Remember, it has to be executed in the same manner as the WILL is executed. Codicil can also be revoked and cancelled. It is better to start afresh then changing the codicil itself or the case may be codicil never existed. Choose carefully.
Q -Now, how to get probate from court in case of WILL?
I WILL explain it in steps:
- File the petition first. If the property is less than 10K, file petition in District Court or else it is to be filed in Punjab and Haryana High Court, general rule.
- Documents to be filed along– Original WILL, death proof, specific description of properties with address, estimated worth and other items included in WILL. If properties are situated in other state, then probate WILL be issued for all India with a note at bottom. The intimation to the District Judge of region where property is situated outside state may be given by court or by the executor himself. Petition should mention whether any similar probate application is filed or not. Title deeds of property bearing the name of deceased should also be presented. Applications for selected portion of properties can also be filed.
- Parties- Executor has to make all concerned i.e. next of kin of deceased who have substantial interest in parties for objections. General public is given to file objections also or any debt laden on the properties of WILL maker.
- Process- On the first date, notices are issued to parties for objections and publication is to be made for general public at place mentioned by court. If the parties appear and give no objections, then the probate is granted within 3-4 months else if the parties file objections and contest the WILL, then it may take over a year to decide the matter. Then it runs like usual casein High Court of Punjab and Haryana at Chandigarh.
Q- What WILL happen in Probate Proceedings?
Probate is court’s order granted with seal of the court and copy of the WILL attached that it is genuine and duly proved in the eyes of law. No further questions regarding the authenticity of the WILL can be questioned. The original still remains with the court for your reference. In probate proceedings two things are most important:
- Proof of Death, time and place.
- Proof that the WILL is validly executed by testator and it is last WILL and testament of the deceased.
- Amount of assets likely to come.
- You have to state all the true facts on the affidavit before the court or else you will charged for the offence of Section 198 IPC.
Proceedings are held under Section 374 of Indian Succession Act before Hon’ble High Court.
Q- What is the fee for getting probate of a WILL?
Lawyers’ fee I cannot comment but yes there is a court fee which executor has to bear on its own. As per Court Fees Act, a specific percentage is deduced from the properties current market worth. For e.g. for properties upto 4 lacs Rs 6248 is the court fee and for every 1 lac, it WILL be Rs 1000/- approximately. Rest, your lawyer can give the exact figure or if you need my help, just say hello! Tring Tring.
It is only after a probate that WILL comes into effect. The citation is served to parties for inviting objections or giving consent to the WILL.
Q- FAQ’s on Probate?
- There is no limitation to file for probate.
- Probate can only be appointed by executor of the will or legatees. Sec 276 of Indian Succession Act, 1925 asks for applying Petition for Probate.
- Probate can be filed for properties within the state and outside the State.
- If the executor is clear then apply for probate or else apply for letters of administration.
- You have to file in High Court for probate and letters of administration and if value of property is less than 10K, then file it in District Court.
- Courts can order both paper publication or gazette publication as per orders of the court.
- If Probate is contested by filing objections, then the probate application is treated as regular suit and disposed of by delivering judgment and decree in accordance with law.
- Forms of Probate is annexed at SCH-6 and Letters of Administration at SCH-7 of the Indian Succession Act.
- Will and Codicil can be revoked at any time.
Q- I have a question?
Yes, please. Swiftly dial 9988817966 or call [email protected]. I am there to assist you in the best possible way I can. Thanks for reading. Stay hooked and wait for next addition on Succession Certificate.
The content of this post is intended to provide a general guide on the subject. Specific advice should be sought about your special circumstances.
