The probate of a Will is a critical legal process that many in India misunderstand or are hesitant to engage with due to prevailing myths.

Probate is the judicial procedure by which a Will is recognised as valid, and the Executor is granted the legal authority to administer the deceased's estate according to the wishes outlined in the Will.

This process, though often perceived as complex, is essential for the orderly distribution of assets and the protection of legal heirs.

What Is Probate Of Will?

Before debunking the myths, it’s important to understand what probate entails.

The probate of Will is a court-supervised process which grants legal authority that the Will is genuine, valid, and that the Executor can carry out the deceased person’s wishes.

The probate process involves several steps, including filing a probate petition, paying applicable court fees, and obtaining the necessary approvals from a competent court.

Myth 1: Probate is Unnecessary if There’s a Will

One of the most common misconceptions is that the existence of a Will eliminates the need for probate. However, this is not the case.

Probate applications must be submitted to a court of competent jurisdiction based on the location of the deceased's assets.

In India, probate is necessary to validate the Will, particularly in cases involving immovable property situated in specific regions, such as the presidency towns of Mumbai, Chennai, and Kolkata.

The Indian Succession Act, 1925, mandates probate for Wills made by Hindus, Buddhists, Sikhs, or Jains, if the property is located within these regions.

Probate serves as a legal safeguard, ensuring the Will is executed according to the testator’s wishes and protecting the rights of the legal heirs.

Read more: Is Probate Necessary For A Registered Will?

Myth 2: The Probate Process with a Will is Incredibly Complicated

Many believe that the probate process is overly complicated and burdensome. While it does involve several steps, including filing the probate petition, submitting the original Will, and paying the court fees, the process is straightforward when guided by a competent legal professional.

The district court grants the probate, which is a critical step in the process. The competent court—typically the district court or the high court, depending on the value of the estate—oversees the process, ensuring everything is conducted fairly and legally.

The Executor named in the Will, or a court-appointed administrator, is responsible for carrying out the deceased person’s wishes and managing the estate’s assets.

Myth 3: Probate is Expensive Due to Applicable Court Fees and Not Worth the Cost

The perceived cost of probate often deters people from engaging in the process. However, the applicable court fees and lawyer’s fees are generally proportional to the value of the estate.

In India, the court fees vary from state to state and are typically a small percentage of the estate’s total value.

Additionally, these costs are usually outweighed by the benefits of having the Will validated and ensuring a smooth transition of assets.

By going through probate, you can avoid disputes among heirs, prevent fraudulent claims, and ensure that the deceased person’s wishes are legally upheld.

Myth 4: Probate Takes Years to Complete

Another common myth is that probate takes an extraordinarily long time to complete. While probate can take several months, especially if the estate is large or if there are disputes, it does not necessarily drag on for years.

The timeline depends on various factors, including the size of the estate, the number of beneficiaries, and whether there are any legal challenges to the Will.

By engaging a knowledgeable lawyer and submitting all the required legal documents and certain documents like the death certificate, the process can be expedited.

Myth 5: Probate is Only for Wealthy Individuals

Some believe that probate is only necessary for large estates. In reality, probate applies to any estate where a Will is present, regardless of its size. However, it is mandatory only in the cities of Mumbai, Chennai and Kolkata.

Whether the estate includes vast properties or modest bank accounts, probate ensures that the deceased’s wishes are honoured and that the estate is distributed correctly.

It’s not about the wealth involved but the legal validation and orderly distribution of the deceased person’s estate.

Myth 6: Probate Can Be Bypassed Entirely

Some people think that by drafting a Will or setting up joint ownerships, they can bypass probate.

While certain strategies, such as setting up a Trust, naming Beneficiaries on life insurance policies or retirement accounts, can avoid probate for those particular assets, other parts of the estate, especially immovable assets in an individual's name, may still require probate. A probate suit may be necessary to authenticate the legitimacy of a Will.

Probate plays a crucial role in ensuring that the entire estate is handled according to the deceased’s wishes and the law, making it difficult to bypass the process entirely.

Myth 7: All Wills Must Go Through Probate

Not all Wills need to go through probate, but this depends on the type of assets involved and the jurisdiction. The district court grants the probate, which is necessary for transferring ownership and settling the estate legally.

As mentioned above, probate is only mandatory in the cities of Mumbai, Chennai and Kolkata.

In cases where the estate includes only movable assets, such as personal belongings or bank accounts, and there are no disputes among the deceased's legal heirs, probate may not be necessary.

However, for immovable assets or in the presence of any legal disputes, probate is typically required to transfer ownership and settle the estate legally.

Myth 8: Probate is Only Needed If There Are Disputes

While it’s true that probate helps resolve disputes, it’s not solely for contested Wills. Probate is a standard legal procedure that verifies the authenticity of a Will and ensures it’s executed according to the deceased person's intentions.

Even if all beneficiaries agree on the distribution of assets, probate provides a legal framework that protects everyone involved and ensures that all legal heirs receive what they’re entitled to.

Myth 9: Probate is a One-Time Legal Process

Many people assume that probate is a one-time event that occurs immediately after the Testator’s death. In reality, probate can be an ongoing process, especially if the estate is complex or if new assets are discovered after the initial probate proceedings. It is crucial to submit all required legal documents to ensure the process runs smoothly.

The probate court may need to revisit the case to address any new developments, making probate a potentially recurring process until the estate is fully settled

The Importance Of Probate In Estate Planning

Understanding the probate process is essential for effective estate planning. Probate ensures that the deceased person’s wishes are legally upheld, the estate is distributed fairly, and all debts and taxes are settled before the assets are passed on to the heirs.

Incorporating probate into your estate planning can provide peace of mind, knowing that your assets will be handled according to your wishes and that your heirs will be protected.

While probate is an essential part of estate planning, there are strategies to minimise its impact, such as setting up Trusts, gifting assets during your lifetime, or designating beneficiaries directly on accounts.

Working with a qualified estate planning attorney can help you navigate these options and create a comprehensive plan that aligns with your goals and minimises the potential challenges of probate.

Read more: Understanding Probate Of Will In India: A Comprehensive Guide

The Bottom Line: How Yellow Can Help

The probate process in India is often misunderstood, leading to myths and misconceptions that can discourage people from engaging in this necessary legal procedure.

By debunking these myths, we can better understand the importance of probate in ensuring that a deceased person’s estate is managed and distributed according to their wishes.

Probate may seem daunting, but with the right legal guidance, it can be a smooth and beneficial process that protects the rights of all involved.

At Yellow, we can help you with all aspects of estate planning, including Wills, Trusts, Powers of Attorney, Gift Deeds, Legal Heir and Succession Certificates, and Living Wills. We also offer post-demise and asset transfer services. Our team of legal experts has more than 50 years of combined experience.

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