When Do You Need Probate, Letters of Administration, or a Succession Certificate?

When is a Probate necessary? Do I need to obtain a Probate or Letters of Administration or Succession Certificate?

To understand when a probate is necessary one has to read section 57 and section 213 of the Indian Succession Act, 1925 together. Under these sections a Probate is necessary in the following two cases :

1.         In the case of all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of September, 1870 within the jurisdiction of the High Courts of Madras (Madras herein means either Kolkata or Chennai) or Bombay.

For example if a Will is executed in Mumbai by a Hindu, it is required to be probated.

2.         In the case of all Wills and codicils made outside the jurisdiction of the High Courts of Madras or Bombay which relate to immoveable property situated within the jurisdiction of the High Courts of Madras or Bombay.

For example if a will is executed outside Mumbai, however under the said will immoveable property situated in Mumbai is bequeathed, then such a will is required to be probated.

A third scenario was added by The Indian Succession (Amendment) Act, 1962. A will made by a Parsi, after the commencement of Indian Succession (Amendment) Act, 1962 also requires to be probated if it was made within the jurisdiction of the High Courts of Madras, Bombay or Calcutta or if it was made outside such jurisdiction, it relates to immoveable property within such jurisdiction.

Further instances wherein a Probate or Letters of Administration or Succession Certificate is necessary.

1. A SEBI circular dated 18^th May 2022 bearing reference number SEBI/HO/MIRSD/MIRSD_RTAMB/P/CIR/2022/65 stated that in the case of a deceased who dies leaving behind physical shares of a company worth more than Rupees 5,00,000 (Rupees Five Lacs Only) or dematerialised shares of a company worth more than Rs. 15,00,000/- (Rupees Fifteen Lacs Only) and such deceased has not made a nomination, in such a case the company would require the person claiming the shares to produce a probate of the will of the deceased or a letters of administration with or without will annexed or a succession certificate as the case may be for the purpose of transmission of the shares in their name.

2.         A Muslim who marries under the Special Marriages Act, 1954 has his/her succession governed by the provisions of the Indian Succession Act, 1925 and a will of such Muslim will require to be probated.

Does not obtaining a probate mean that the Will is invalid?

No, the India Succession Act, 1925 does not mandate probate of a Will and hence a Will that is not probated does not become invalid.

However under certain circumstances as mentioned above, the Indian Succession Act, 1925 requires that a Will be probated for the purpose of the establishing the right of a person as an executor or a legatee under a Will. What this means is that if a will is required to be probated under the Indian Succession Act, 1925, then in that case a person who is appointed as an executor under such a will cannot be recognised as executor for the purpose of carrying out his duties as executor without probating the will and a person who is a legatee under the will cannot receive the bequests made under the will until the will has been probated.

When is a probate not required?

A probate, letters of administration with or without will annexed or succession certificate is not required in the following situations :

1.  In case of the will of a Hindu, Jaina, Sikh and Buddhist made prior to 1^st September 1970.

2.  In case of the will of a Hindu, Jaina, Sikh and Buddhist which has not been executed within the jurisdiction of the High Courts of Madras or Bombay and does not relate to immoveable property situated within the jurisdiction of the High Courts of Madras or Bombay.

3.   No probate is required for the Will of a Muhammadan.

4.   No probate is required for the Will of a Khoja.

5.  No probate is required for a will executed in Delhi, which does not relate to property in Kolkata, Chennai or Mumbai.

6.  No probate is required for a will relating to immoveable property in Delhi, executed anywhere in India save and except in Kolkata, Chennai or Mumbai.

7.  For a will and or otherwise where the value of the physical shares of the Company left behind does not exceed a sum of Rs. 5,00,000/- (Rupees Five Lacs Only) or dematerialised shares of a company worth more than Rs. 15,00,000/- (Rupees Fifteen Lacs Only) and such deceased has not made a nomination the following documents can be submitted instead (as provided by the SEBI circular dated 18^th May 2022 bearing reference no. SEBI/HO/MIRSD/MIRSD_RTAMB/P/CIR/2022/65).

(i) no objection certificate from all legal heirs(s), in as per the format provided in Annexure F (of the said Sebi circular), or copy of family settlement deed executed by all the legal heirs, duly attested by a notary public or by a gazetted officer; and (ii) notarized indemnity bond made on non -judicial stamp paper of appropriate value, indemnifying the Share Transfer Agent/listed entity, in as per the format provided in Annexure E (of the said Sebi circular).

Written by - Advocate Shefal Chirawawala

Disclaimer: This article is published for the purpose of general information only and is not intended and or does not constitute legal or other advice. The reader shall independently verify the information contained in this article and the author does not claim that the article's content or information is accurate, correct or complete, and disclaims all liability for any loss or damage caused through error or omission.