Death is unavoidable, and there is no way around it. In legal terms, the transfer of the deceased’s property is frequently carried out through legal instruments such as a Will. Legal heirs of the testator may choose to pursue property claims as specified in the Will. In this article, we will discuss the most common legal instruments in our legal framework, namely the succession certificate and Will probate. As a result, the term “will” can be construed as a legal document that authorizes the transfer of property among legal successors. Giving legal effect to a property transfer is an important milestone in one’s life.
Probate
Probate, as defined in section 2(f)[1] of the Indian Succession Act of 1925, is a copy of the will certified by the seal of a court of competent jurisdiction. The applicant is granted administration rights over an estate through Probate (who is an executor under the will). It is a legal procedure that determines the validity and authenticity of a will in a court of law. The executor of the will, beneficiaries, and value of the estate are all determined during this process. Probate allows the executor to obtain certification from the court that he is duly authorized to administer the testator’s estate under the terms of the will. A beneficiary can also be named as an executor in a will.
Probates are granted to executors of wills in order to provide them with a seal of approval from the court. If there are no executors named in the will, the court will only issue a simple letter of administration rather than a probate. When a probate is applied for and the will is proved, the court retains the original copy and issues the executor with a certificate proving that it is genuine (the probate) as well as a copy of the will.
Importance of probate
It is now well recognized that probate legalized a will or the executor of a will to transfer property into the names of those to whom the property is bequeathed. However, there are circumstances in which a probate may be required. Let’s imagine a property is handed to a person within a community, and he or she want to occupy it. Because the owner, according to the society record, is the person who has died and left a Will, the executor may not be able to transfer the property unless the executor can present a probate indicating their authorization to do so.
People of Indian Hindu, Parsi, Buddhist, Sikh, or Jains, primarily in the cities of Chennai, Kolkata, and Mumbai, apply for probate for a will or any codicil attached. Even if the will is written outside of certain territories, it will still require Probate for assets located within them.
A probate is distinct from a Letter of Administration, which is granted when there is no executor named in the will or when the deceased person did not leave a will.
Application for probate
A probate is granted in accordance with Sections 57 and 213 of the Indian Succession Act. The High Court grants probates to the executor or executors (in succession, if more than one is named) with a copy of the will attached.
After seven days of the Testator’s death, one may apply for probate (or the person who makes the will and is the owner of the property to be distributed).
Documents required for probate
When submitting a probate application, you must include certain documents that prove:
a.The will is genuine and is the testator’s last will and testament.
b.Proof of the testator’s death.
c.That the will is validly executed in the testator’s clear conscience.
Succession certificate
A succession certificate is a legal document that grants the legitimate heirs of a deceased person who died intestate the right to inherit debts and securities. When the beneficiaries apply to a civil court of competent jurisdiction, they are granted the right to inherit. In other words, a succession certificate establishes the legal entitlement of legal heirs to inherit the deceased’s estate. According to section 370[12] of the Act, Succession Certificates cannot be provided in connection with any obligation or security for which the rights must be established by Probate.
How to apply for succession certificate?
i)An application should be filed with the District Judge under section 372 of the Act;
ii) the residences of the deceased’s relatives and family must be mentioned;
iii) In the case of The Hindu Succession Act (Act XXX OF 1956), the names of the heirs must be mentioned in the petition;
iv) The deceased’s ordinary abode at the time of death, or the deceased’s property, should be within the jurisdiction of the Court in question;
v) the petitioner’s right should be mentioned;
vi) the obligations and securities for which the succession certificate is sought shall be indicated;
The Effect of a Succession Certificate:
Section 381 of the Act is a good place to start to learn about the effect of a succession certificate. The succession certificate just provides protection to the parties that are responsible for paying debts. It is clearly clear that there is no adjudication of the deceased’s claim.
Policy of Insurance and Succession Certificate
The amount owed to the policyholder is payable to the heirs, legal representatives, or holder of a succession certificate, as applicable. If there is no disagreement between the legal heirs and the legal representatives as to who is actually authorized to receive the policy amount, then submitting a Succession Certificate is not required.
Conclusion
Probate and Succession Certificate are legal documents that grant rights to the deceased’s estate. Probate is the primary documents used to validate administrative rights pertaining to the deceased’s estate. In comparison to the probate, the role of the Succession Certificate is very limited. Although a Succession Certificate can be used to acquire debts and securities, rights to immovable property and assets of significant value require the grant of Probate or Letters of Administration.
