The word ‘Will’ is not new to all of us. We know that a will is a legal document which declares the wish or desire of a person to distribute his wealth and assets to the legal heirs or to anyone he wishes. Basically it helps to distribute the property and assets of the person. A ‘will’ has to be signed by two witnesses and at times, the person selects an executor to distribute his assets as per the will. There is one more word that is related to a ‘will’, i.e. Probate. This is nothing but a copy of the will that has to be certified under the seal of the court. Let’s learn more about Probate and the aspects related to it.
1. What is a Probate
A Probate is a copy of the will that is certified under the seal of a court of competent jurisdiction that permits to distribute the assets of the estate of the testator as per his will. A probate is a convincing proof of the fact that the will is genuine and is the last will of the testator or the deceased. A Probate of a will is not mandatory but obtaining it is advisable because it stands as a valid proof in case of the will being contested in future on any ground.
2. A Testator and An Executor
A Testator or a Testatrix is the person who makes a will. In it, he mentions the name of a person or persons who has to execute his will. This person or persons are said to be the Executors. If the name of an executor is not mentioned in the will, then any of the legal heirs can be selected as an executor or the legal heirs can appoint someone as an Executor. Only an Executor can apply for a Probate. He has to make an application for grant of a probate under the seal of the court, certifying the Will. An Executor can apply for a Probate after 7 days of the death of the testator. The entire process may take upto nine months to complete but might stretch to even two years if any objection arises from anyone.
3. All About Probate
It is a fact that one cannot Probate a will before the death of the Testator. A will can be filed for a probate only after the Testator passes away, that too after a week of his death. He has to file for a Probate in that state where the deceased person was living at the time of his death. An Executor cannot exercise his rights unless the Court of competent jurisdiction has granted a probate. A Power of Attorney holds rights only during the lifetime of the person granting him those powers. He plays no role after the death of the testator.
A will is also valid with the signature of the testator and the attestation done by the witnesses but the credibility of the will increases with the probate of will. It is an official proof as it is certified by the court and holds a seal of the court. It authorises the Executor to execute or implement the will as desired by the deceased. He also gets the right to pay off the bills or the debts owed to the creditors.
Probate becomes essential when the assets of an estate are solely in the name of the deceased or the Testator. To transfer the property to beneficiaries, the estate has to go through the Probate of the Will. If the Testator owns immovable assets in different states, then also a probate becomes essential as it helps to ease the process.
All assets that are absolutely owned by the decedent are subject to Probate. These include real estate property, jewellery, furniture, and automobiles. A probate is also required if the beneficiaries of the will have died before the testator. If there is no dispute among the legal heirs over the will, then they can do without the Probate.
3.1. Procedure to Apply for the Probate
Only the appointed Executor or the one whose name is mentioned in the Will is eligible to apply for a Probate. He has to make a petition to a competent court for the issue of a Probate. Based on the value of the assets mentioned in the will, the Executor has to pay the court fees. Fee for Probate differs from state to state and the fee of the probate also depends on the value of the assets. The lawyer’s fees and the court fees and all the costs of probate will be paid out from the estate of the testator.
The Executor will also have to mention the names and addresses of the legal heirs of the deceased. This helps in issuing them a notice prior to the probation of the will. The facts of the death of the Testator along with proofs have to be submitted to the local authorities. The Executor is also expected to prove that the will submitted for the Probate is the last will of the deceased and no other will was made after that.
4. Challenges to a Will or Probate Claims
Challenging a will is not a piece of cake. The court of law strictly supports the Will as the deceased or the Testator is not alive to defend himself. Under a few circumstances, a will or a probate can be challenged. If the court gets convinced, then the will can be voided. The following aspects can help to challenge a will and after that only it is ready for probate.
4.1. Lack of Implementation
Lack of proper execution can also become a reason for the will to be challenged. A valid will can be legibly handwritten or typed and needs to be signed by the testator and two witnesses. It would be better if the two witnesses are much younger than the testator.
4.2. Lack of Knowledge
One should have a proper knowledge about his assets and how to write a will. In his will he has to mention his name and his details clearly. He should also mention about his assets and the division of his assets clearly. Any mistake will give a chance to challenge the will. The names of the heirs should also be mentioned.
4.3. Created by Fraud or Forgery
One can also challenge a will by proving that the will was procured by fraud, forgery, or undue influence. It was produced through fraudulence and not signed by the Testator.
4.4. Revocation of Earlier Will
One can even challenge a will that is registered, by claiming that it is not the last will. The court will examine the will and if it finds any suspicious facts, then the new will may be considered valid even though it may not be registered.
Written by Nikhil Gattu
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Written by Nikhil Gattu
