A Will is a testament and a legal declaration by which a person, viz the testator, names one or more persons as the executor to manage his/her estate and provide for the transfer of his/her property after his death. A Will can be made by anyone above 21 years of age in India and is a very effective tool of guidance in estate planning.
What are the advantages of probate?
Probate of a Will establishes the genuineness of Will and renders valid all intermediate acts of the Executor. The major advantage of a probated will is that it adds a layer of authenticity to the Will.
What is the need to probate a Will?
-When the property is solely owned by the testator (creator of the Will), the legal heir can conveniently transfer the assets in their name if the Will is probated
-When the testator has immovable assets in different states, it becomes necessary to file for probate for ease of the process
-Probate is granted only to the executor of the Will. The executor gets the authority to distribute the testator’s assets and pay off bills and creditors from that estate.
When to apply for probate of Will?
The executor can apply for probate after seven days of the testator’s death. The process of probate of Will takes at least six to nine months to complete. If an objection is raised, the process may take up to two years to complete.
What are the fees for probate of a will?
The costs associated with getting a will probated vary from state to state depending on what the district court charges. The value of the assets affects the fees as well. Both the attorney’s and the court’s expenses must be paid by the petitioner. Probate fees are deducted from the deceased’s estate.
What is the procedure to apply for probate of a Will?
Following is the procedure for obtaining the probate of a Will:
-A petition has to be filed in the court for probate of a Will. The executor of the Will is the petitioner and files the original Will and petition in the court
-The petition is filed before a competent court, usually the district court in the residence area of the deceased. The court’s jurisdiction depends on the petition’s monetary value. For high-value immovable assets, it may require a higher court to issue probate
-The executor mentions the names and addresses of the deceased’s legal heirs so that notice can be served to them
The executor pays the applicable court fees depending upon the value of the assets
-The court asks the petitioner to furnish the testator’s proof of death, evidence that the testator’s Will is validly executed as well as confirm that this is the deceased’s last Will
-The court issues notice to the deceased’s next of kin and calls for objections
To notify the general public, the court orders the publication of a citation of the probate petition on board
-The court grants the probate if no one raises any objection
-If there are objections, the parties will have to lead evidence and argue the matter. The probate petition becomes the original suit
-Based on the evidence and arguments, the court will pass judgment in the probate suit.
Is it possible to probate a Will before death?
A Will cannot be probated before the death of the testator. Only the executor of the Will can file for probate in court after the testator’s death to certify its validity.
Conclusion:
A probate is used to protect estates so that the correct beneficiaries inherit the testator’s assets. It provides the chance to close out all creditors to the estate within 90 days. It is even used as a tool to challenge a creditor’s claim in a court of law, in case the creditor has falsely made a claim.
Therefore, probate of a Will establishes the legitimacy of a will after the death of the testator and shows the executors and legal heirs to the substance mentioned in the will. However, if there is consent among all heirs then there is no need to go through the probate process.