What Is The Probate Procedure For A Will?

A will is a declaration given by a person known as the testator that defines how his property will be distributed upon his demise. It is not mandatory to create a Will in India; however, it helps create clarity and eliminates disputes with regards to inheritance. However, many a time the Will must also pass through a judicial process before it can be enforced, this judicial process is termed as probate. 

This article covers the procedure of probate in India, when it is required, the documents involved, the relevant legal provisions, and landmark case laws that have shaped the current practice of probate.

What is Probate?

Probate is a court-supervised procedure for the verification and approval of the Will of the deceased. The executor has the right to legally distribute the property only after the probate.

When Do You Actually Need Probate in India?

As per Section 213 of the Indian Succession Act of 1925:

Probate shall be necessary when:

• The person who died was a Hindu, Sikh, Buddhist, or Jain, and the will deals with property in the Presidential towns of Mumbai, Chennai, or Kolkata.  
• The deceased was Christian or Parsi, regardless of location.

First-hand tip: In one of the client’s cases, his father had a flat in Mumbai. Even though the Will was registered and uncontested, he still had to get probate because it’s a Presidency Town. Skipping it wasn’t an option.

Legal Provisions You Should Know Before Starting

The primary law regulating the process of probate is the Indian Succession Act of 1925.

Key sections:

• Section 276: Filing the probate petition
• Section 222: Who can apply (only the executor)
• Section 283: Court’s power to summon witnesses, request documents, etc.

Procedural aspects are also regulated by the Code of Civil Procedure of 1908.

Who Can Apply for Probate? 

Only the executor named in the Will can apply.

What if there’s no executor?

Then a legal heir must apply for Letters of Administration, not probate.

Step-by-Step Guide to the Probate Process in India

Step 1: File a Petition: 

Submit your petition to the District Court or High Court (for Presidency towns). It must include:

• Name and death details of the testator
• Original Will
• Details of legal heirs and property
• Your ID and executor declaration

Step 2: Notify All Heirs: 

Notices are sent by the court to legal heirs and a public notice is issued in newspapers.

Real-life tip: The newspaper notice took about 2 weeks and was around Rs. 5,000. Check with local agents to speed it up.

Step 3: Will Verification

If no one objects:

• Court checks the Will’s authenticity
• Confirms testator’s soundness of mind
• Attesting witnesses are summoned (ours had to attend in person).  

Step 4: If Someone Objects: 

The case becomes contentious, like a mini-lawsuit.

You may need:

• Legal representation
• Cross-examination of witnesses

Step 5: Probate Granted: 

Then, if everything is all right, you are given a Probate Certificate, and you are hence legally empowered to manage and distribute the estate.

Documents You’ll Definitely Need

Here’s what I had to collect:

• Original Will
• Death Certificate
• Executor’s Aadhaar and PAN
• NOCs from siblings (if any)
• Property documents
• Court fee receipt
• Affidavit confirming the Will is genuine
• Newspaper publication proof
• Property ownership proofs like sale deed or valuation certificate

Practical insight: Get multiple certified copies of the Probate Certificate. Banks and sub-registrars want originals, not PDFs.

How Much Does Probate Cost?

Court Fees:

• Vary by state and estate value
• Example: Maharashtra uses the Bombay Court Fees Act; Delhi uses the Court Fees Act, 1870

Lawyer Fees:

• ₹25,000 to ₹1,00,000 depending on complexity

Other Costs:

• Valuation certificate from registered valuers
• Public notice ads
• Notarization and affidavits

Can Someone Challenge a Will?

Yes. Here are common grounds for challenge:

• Fraud or forgery
• Testator had no mental capacity
• Will was signed under pressure
• Will lacks proper witness signatures
• Will excludes close heirs without explanation

Major Court Judgments You Should Know

• Jaswant Kaur v. Amrit Kaur (1977 AIR 74 SC): Suspicious circumstances require explanation by the executor.
• H. Venkatachala Iyengar v. B.N. Thimmajamma (1959 SCR 426): Propounders must prove sound mind and no coercion.
• Gurdev Kaur v. Kaki (AIR 2007 SC 1975): Will registration doesn’t guarantee validity, substance matters more.

Trends in 2025: How Courts Are Evolving

• Courts are more open to video-recorded Wills
• Digital Wills may gain more legal weight soon
• Judges increasingly ask: “Why were some heirs excluded?” Be prepared to justify that.

Final Words: Why Probate Matters More Than You Think

Getting probate might seem like a hassle, but it gives your family legal security, especially in property and bank matters. Don’t wait until disputes arise. If your deceased left a Will, then respect the Will, follow the procedure, and get the Probate.

If you find yourself unconvinced or as an anxious matron, then go with a Probate lawyer. It is going to save you time, headache, and would put a stop to any legal battles all together.  

One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.

FAQs

1. Can an unregistered Will be probated in India?

Yes, Will does not need to be registered to be valid or to bear the process of probate. The fact remains that registration of a Will minimizes suspicion or disagreements.

2. What happens if the executor has died or is unwilling?

If the named executor refuses, is incapacitated, or has died, a legal heir can apply for Letters of Administration in place of probate.

3. Would the legal heirs need to consent to the probate process?

NOCs from other heirs ideally help avoid delays, however, if someone refuses, it might become contentious, and a hearing may be held.