PROBATE & LETTERS OF ADMINISTRATION
Probate:
A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor’s authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.
Effect of grant of probates :
A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.
The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.
A probate is conclusive as to the genuineness of the Will and appointment of the executors.
Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
Probate is conclusive as to the representative title of the executor.
To whom probates can be granted :
Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.
Letters of Administration:
In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.
To whom can a Letters of Administration be granted :
Under the Indian Succession Act, 1925, a LoA can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.
Legal Declaration:
The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.
Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will is granted only to an executor appointed by the Will.
Who can be an Executor :
All persons capable of executing Wills can be executors. Even a minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains majority. A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution such as a bank as an executor. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.
Legal status of the Executor :
The executor is the legal representative for all purposes of a deceased person and all the property of the testator vests in him until the property is distributed as per the provisions of the Will. The executor is entitled to represent the testator in any legal action (not including criminal or defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the executor only for the purpose of representation and administration.
Duties of an Executor :
To ascertain the assets of the deceased person.
To pay testamentary and funeral expenses.
To collect the debts and assets of the deceased.
To pay the debts of the deceased.
To apply for a Probate, whenever necessary.
Applicable laws & Special provisions
Applicable Laws:
The Indian Succession Act, 1925
Hindu Personal Laws
Muslim Personal Laws
The Indian Registration Act, 1908
Special Provisions
Hindus, Sikhs, Jains and Buddhists :
A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
The executor can also be the witness to the Will.
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
Parsis and Christians :
On the marriage of a Parsi or Christian testator, his/her Will stands revoked.
Muslims :
Muslim Personal Law governs a Muslim testator’s power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.
In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will,
A Muslim can bequeath only one-third of his property by Will.
The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator’s assets.
A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere.
An Overview of Wills under Hindu Law:
The origin and growth of Will amongst the Hindus is unknown. However Wills were well known to the Mohammedans and contact with them during the Mohammedan rule, and later on with the European countries, was probably responsible for the practice of substituting informal written or oral testamentary instruments with formal testamentary instruments. The Indian Succession Act, 1925, consolidating the laws of intestate (with certain exceptions) and testamentary succession supersedes the earlier Acts, and is applicable to all the Wills and codicils of Hindus, Buddhists, Sikhs and Jainas throughout India. The Indian Succession Act, 1925, does not govern Mohammedans and they can dispose their property according to Muslim Law.
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