Probate

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Question asked on: 19/12/2014

What is the probate?

Advised by: Shivendra Pratap Singh,

Probate is a legal document. Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the dead person’s property under a will. According to The Indian Succession Act, 1925(hereinafter said Act); probate means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.

Jurisdiction of the Court 

Section 270 of the Act confers jurisdiction on the District Judge to grant probate upon a petition moved before him if, at the time of his ( maker of the will) death, the testator had a fixed place of abode or any property, movable or immovable, within the jurisdiction of the court. The proviso to Section 273 says that where the property of the deceased is situated in more than one State, the District Judge in whose jurisdiction the dead had a fixed place of abode would be entitled to grant probate provided he certifies that the value of the property and estate affected beyond the limits of the State does not exceed Rs. 10,000/-.

The jurisdiction would depend upon the value of the property in a State other than the State in which the deceased died. Section 273 provides that the grant shall affect all the wealth and estate, moveable or immovable of the dead throughout the State and unless otherwise directed the award has like effect throughout the other States.

The Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased. The probate Court alone has sole authority and the Civil Court on the first side or the Arbitrator does not get jurisdiction, even if consented to by the parties.

Procedure to obtain probate 

Section 276 provides the process to obtain probate. Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating

  • the time of the testator’s death,
  • that the writing annexed is his last will,
  • that it was duly executed,
  • the number of assets which are likely to come to the petitioner’s hands, and
  • when the application is for probate, that the petitioner is the executor named in the Will.

In addition to these particulars, the petition shall further state:-

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the number of such assets in each State and the District Judges within whose jurisdiction such assets are situated.

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Shivendra Pratap Singh

Advocate, Lucknow

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