WILL AND PROBATE: Demystifying Probate: Understanding the Application Process

Introduction

Probate is a legal process that validates and administers the estate of a deceased individual. It involves obtaining the necessary legal authority to distribute the deceased person's assets and settle their debts. In this article, we will explore the application process for probate, as outlined in the Bombay High Court Original Side (OS) Rules and the Indian Succession Act, 1925.

Application for Probate

Petition Submission: The application for probate is made through a petition, as per Rule 374 of the Bombay HC OS Rules. The petition should be accompanied by a copy of the deceased's last will and testament, along with an official translation if the will is not in English. The original will is filed separately and kept securely by the Prothonotary and Senior Master.

Schedule of Property and Credits: A schedule of the property and credits owned by the deceased at the time of their death, which may come into the petitioner's possession, is annexed to the petition. This schedule helps in determining the net estate of the deceased.

Schedule of Debts and Trust Property: The petition also includes a schedule of the deceased's debts and other items that can be deducted to ascertain the net estate. Additionally, if the deceased held any property in trust for another person without a beneficial interest, it should be listed in a separate schedule.

Required Documentation: The petition for probate must be accompanied by specific documents, including:

a. Vakaltnama: This is a document signed by the petitioner's lawyer, authorizing them to represent the petitioner.

b. Executor's Oath: An executor, if appointed, needs to submit an oath stating their willingness to act in the best interests of the estate.

c. Affidavit of Attesting Witness: If available, one of the witnesses who attested the will may provide an affidavit.

d. Copy of Estate Duty Return: If the estate duty return has been filed with the Controller of Estate Duty, a copy of it should be included.

Forms and Variations: The petition and accompanying schedules follow specific forms outlined in the Bombay HC OS Rules. Forms No. 97, 98, 99, and 100 are used for the petition and schedules, with variations based on the circumstances of each case.

Application for Letters of Administration

Cases with a Will: If the deceased left a will, the application for letters of administration is made through a petition, as stated in Rule 375 of the Bombay HC OS Rules. The process is similar to the probate application, where the copy of the will, schedules, and required documents are submitted along with the petition.

Cases without a Will: In situations where the deceased did not leave a will, the application for letters of administration is made through a petition, as per Rule 376 of the Bombay HC OS Rules. The petition includes the schedules of the deceased's property and credits, debts, and trust property. The required documents, such as the vakalatnama and administrator's oath, are also submitted.

Application for Succession Certificate

Petition Submission: The application for a succession certificate is made through a petition, as per Rule 377. The petition should include a schedule of the deceased's property for which the succession certificate is being sought.

Required Documentation: The petition for a succession certificate should be accompanied by the vakalatnama, petitioner's oath, and a copy of the estate duty return if it has been filed.

Conclusion

Obtaining probate or letters of administration is essential for the orderly administration of a deceased person's estate. By following the prescribed application process and adhering to the relevant rules and regulations, individuals can navigate the probate process effectively. The Bombay HC OS Rules provide clear guidelines, forms, and variations for the submission of petitions, schedules, and supporting documents. It is important to consult legal professionals for guidance and assistance throughout the probate or administration process.

OTHER INFORMATION THAT YOU SHOULD GO THROUGH IN ANY PROBATE AND ADMINISTRATION MATTERS –

·        Title of Applications under the Indian Succession Act, 1925

·        Application for Probate or Letters of Administrations

·        Age of minor to be stated

·        Probate or Letters of Administration with Will annexed

·        Particulars in caveat

·        Notice of caveat

·        Order for grant of Probate

·        Decree

·        Form of inventory

·        Form of account

·        Extension of time to file inventory or accounts

·        Administration Bond

·        Preservation and inspection of Wills