Making Will for succession: What is a probate will and how does it help in succession of estate?

Time of India

3 days ago

What is a probate to a Will?
Is probate compulsory even if a Will is valid?
5 benefits of having a probate Will
Court authentication: Validates the will and reduces the chance of forgery or challenge
Validates the will and reduces the chance of forgery or challenge Eases asset transfer: Institutions like banks, mutual funds, and real estate registrars accept probated wills more readily
Institutions like banks, mutual funds, and real estate registrars accept probated wills more readily Clarity for heirs: Prevents ambiguity and reduces chances of legal disputes
Prevents ambiguity and reduces chances of legal disputes Executor empowerment: Provides a clear mandate for executors to carry out asset division
Provides a clear mandate for executors to carry out asset division Essential for NRIs and HNIs: Especially helpful for families with international or cross-state property holdings
When should you consider probate?
You own immovable property in Mumbai, Chennai, or Kolkata
Your estate involves multiple heirs or complex family relationships
There is no nominee in major assets like FDs, mutual funds, or demat accounts
You expect any challenge or contestation to your will
You have cross-border or pan-India assets (NRI, HNI, or business family)
What happens if you don't have a probate Will?
Drafting a Will is one of the simplest forms of succession planning , which can help many Indian families from succession related problems.However, a simple Will, while useful, may not always be enough, especially when it comes to real estate especially in big cities like Mumbai, Kolkata, or Chennai, or when multiple legal heirs are involved. This is where probate of a Will comes to the rescue of legal heirs as it helps significantly in smooth transfer of inheritance to intended legal heirs.The basic shortcoming which a simple Will has that there is no way it can prove for itself about its authenticity. This is where it is challenged in court by people who are unwilling to accept its authenticity. To cure this flaw, wonder the Indian law, a probate of Will is done, which is a judicial certification of a Will's authenticity, issued by a court. It not only strengthens the legal standing of the Will but is mandatory in certain jurisdictions. Once probate is granted, it acts as conclusive proof of the executor's right to distribute the assets according to the Will.Yet, confusion persists: Is probate always needed? What is the extra benefit if the Will is already clear?"Getting a Will probated means obtaining a court's certification that the Will is valid andgenuine, allowing the executor to legally administer and distribute the deceased's estate. It provides legal certainty to beneficiaries and ensures the Will is carried out as intended," says Sreepriya NS, co-founder and director of Entrust Family Office.As estate values grow and family structures become more complex, understanding how a probate Will streamlines succession is more relevant than ever, for both legal clarity and peace of mind.Over the years, writing a Will has been seen as a smart and responsible way to plan for succession. But in India, simply drafting a Will may not always guarantee that your assets will transfer smoothly to your heirs. In fact, in several parts of the country, and especially when dealing with immovable property, a probate Will can offer a much stronger legal foundation.In cities like Mumbai, Chennai, and Kolkata, probate isn't just a formality, it's a legal requirement. However, awareness around what is a probate Will and why it may be necessary, is limited among most Indian families."Probate is mandatory for Hindus, Jains, Sikhs and Buddhists, when a Will includes immovable property located in Chennai, Kolkata and Mumbai or if the Will is executed in these cities. This is because these cities are still considered presidency towns from colonial times, and the law under the Indian Succession Act continues totreat them differently," says Nikhil Varghese, Co-founder of Yellow, a digital will-making app. For other parts of India, probate is optional but still beneficial in many scenarios.Radhika Gaggar, Partner, Cyril Amarchand Mangaldas concurs, "Probate is required in some Indian cities, by which court authenticates validity of the Will and grants administration of estate to executor; and for the executor or beneficiary to establish their right under the Will before a court of law. Historically, the English probate practice was applied to specific notified areas in the presidency towns of Calcutta, Madras and Bombay. Under the present-day Indian Succession Act, this continues to apply to areas which fall within the original civil jurisdiction of the High Courts at Kolkata, Chennai or Mumbai."If the estate is modest, heirs are in agreement, and assets are already nominated, a basic Will may be enough. However, many Indians today hold multiple assets across states, deal in real estate, or face complex family structures, where a simple Will may not stand up to scrutiny.Priyanka Desai, partner and co-founder of The Fort Circle, a legal advisory firm, echoes "Although obtaining a Probate is mandatory only in the jurisdictions of the former Presidency Towns-namely Kolkata, Mumbai, and Chennai-this does not imply that a Will is automatically deemed valid in other parts of India. A Will executed outside these areas must still be proved to be valid if its authenticity is challenged, typically through a suit filed before a competent court."A family with complex asset mix needs a probated Will more than others. "In India, probate has become a key estate planning tool, especially for families with complex assets. It ensures Wills are legally sound, reducing disputes. Advisors recommend drafting Wills with probate in mind, particularly in cities like Mumbai, Chennai, and Kolkata, where it's often required. This promotes transparency, clarity, and smooth succession. Proactive probate use enhances enforceability, lowers litigation risks, and simplifies estate administration," says Shraddha Nileshwar, Vertical Head for Will & Estate Planning at 1 Finance, a financial advisory firm.Even where it isn't mandatory, a probate-backed Will has several key advantages, some of which are discussed below:Many are now opting for comprehensive succession plans that combine Wills, trusts, and probate filings, particularly in joint families or NRI households. Probate also acts as a legal shield when estate distribution might otherwise be challenged.Some companies also help clients navigate the court process of obtaining probate, ensuring documents are in order, notifications are issued, and follow-ups are handled without burdening the family.To obtain probate, the executor or legal heir must submit an application to the court, along with documents such as the original Will, the death certificate, identity proof, and details of heirs. The court invites objections, and if uncontested, issues the probate certificate.You should seriously consider probate in the following scenarios:In such cases, probate is more than a legal formality, it becomes your estate's strongest protection plan.In the absence of probate, banks and land registrars often refuse to transfer ownership or release funds, even if there is a Will. This can lead to legal delays and emotional distress for the surviving family members.This can often lead to financial loss as well. "A 2022 India Wealth Report notes 35% of families without probate face disputes, losing 3-8% of estate value. With 40% of high-net-worth families now using probate, a 15% rise since 2019, it minimizes delays and ensures efficient wealth transfer for complex estates, says Shraddha Nileshwar.Any delay in accessing the asset will have financial implications for the legal heirs. "The pendency of cases in Indian courts can and in fact do significantly delay the grant of probates/ letters of administration of wills, impacting the process of administering estates and distributing assets in accordance with a Will. This delay can arise from several factors, including the vast number of pending cases, limited judicial resources, and the complexities of legal proceedings per se. Proving a will in court of law can be an arduous task, particularly if it's contested. The process requires demonstrating the Will's validity, including the testator's capacity, due execution, and the absence of undue influence or suspicious circumstances," says Tahira Karanjawala, Partner at Karanjawala & Co.Priyanka Desai gives an example of a situation where asset transfer became difficult because a simple Will wasn't probated. "Often there are delays in transfer of flats in a Co-operative housing society in the absence of a Probate. For example, if a flat is owned by X and, under X's Will, the flat is bequeathed to one legal heir to the exclusion of others, the society refuses to transfer the flat to the named beneficiary unless the Will is proven valid through by a competent court by issuing a Probate. This is because housing societies prefer to avoid being drawn into potential legal disputes that may arise if other legal heirs challenge the Will."