Understanding Probate, Letters of Administration, and Succession Certificate in India

Under the Indian Succession Act, 1925 a probate has been defined as follows:

“probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;”

To breakdown the definition in layman’s terms, a probate is a grant of the Court which certifies that a will left behind by a person has been proved in the Court. A probate is an order of the Court that the assets of the deceased shall be distributed in the manner as mentioned in the Will which has been proved in Court.

A Will and codicils made by any Hindu, Buddhist, Sikh, Parsi or Jain, executed in either Kolkata, Chennai or Bombay or a will made by any Hindu, Buddhist, Sikh, Parsi or Jain which purports to immoveable property situated in Kolkata, Chennai or Bombay, requires to be probated under the provisions of the Indian Succession Act, 1925.

Why is a probate necessary?

Under Section 213 of the Indian Succession Act, 1925, the right as executor or legatee under a will is not established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

To whom can a Probate of a Will be granted?

As per Section 222 of the Indian Succession Act, 1925 a probate of a will shall only be granted to an executor appointed by the will. The appointment may be expressed or by necessary implication. For example :

(i) A wills that C be his executor if B will not. B is appointed executor by implication.

(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication.

When several executors are appointed, probate may be granted to them all simultaneously or at different times.

How can a beneficiary obtain a probate where the executor refuses to act as executor?

When the executor fails to act as an executor, the will may be proved by and letters of administration with will annexed may be obtained by any person who would be entitled to the estate of the deceased, had the deceased died intestate. In such a scenario the executor has to renunciate his executorship either orally in front of a Judge or in writing and duly signed by him. Once the executor has renunciates his executorship, he shall be precluded from ever applying for probate of the will under which he has been appointed as an executor.

In the event the executor fails to renounce his executorship, the court shall not grant administration until a citation is issued on the executor calling upon him to either accept or renounce his executorship. For example Z appoints Y to be his executor. Y fails to exercise his duties as executor under the will of Z. X is the beneficiary under the will of Z. X can approach the court for administration of the will of Z. For the purpose of obtaining administration in his favour, X will either have to produce Y in court where he orally renounces his executorship or he will have to obtain a writing from Y wherein Y renounces his executorship. If Y refuses to present himself in court or to provide such writing then X can still approach the court for obtaining the administration of the Will of Z, however the court shall prior to proceeding with granting administration of the Will of Z, call upon Y, asking him to either accept his executorship or to renounce the same.

What happens in case of a Will that has been proved abroad?

Under section 228 of the Indian Succession Act, 1925 when a will has been proved and deposited in a Court of competent jurisdiction situated outside India, letters of administration may be granted in respect of such Will as long as a properly authenticated copy of the will is produced.

Letters of administration with or without will annexed

Letters of administration is an order of the Court granting the authority to a person to administer the estate of a deceased who has either left a will behind but has not appointed an executor under the said will or when the executor/s appointed under such will are either dead, incapable of acting as executors or are unwilling to act as executors or the in case of a deceased who has died intestate leaving behind immoveable property.

In the case of a deceased who has left a will behind but has not appointed an executor under the said will or when the executor/s appointed under such will are either dead, incapable of acting as executors or are unwilling to act as executors, letters of administration with will annexed is applied for by the beneficiary/ies under the said will.

In case of a deceased who died intestate leaving behind immoveable property, letters of administration without will annexed is applied for by persons who are the legal heirs of the deceased and entitled to his/her estate under their individual succession laws.

To whom can letters of administration be granted?

Under section 218 of the Indian Succession Act, 1925, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.—

(1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.

(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the deceased.

Where deceased who died intestate is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:

(a) If the deceased has left a widow, administration shall be granted to the widow, unless the Court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased.

(b) If the Judge thinks proper, he may associate any person or persons with the widow in the administration who would be entitled solely to the administration if there were no widow.

(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit the administration to the person or persons who would be beneficially entitled to the estate according to the rules for the distribution of an intestate’s estate: Provided that, when the mother of the deceased is one of the class of persons so entitled, she shall be solely entitled to administration.

(d) Those who stand in equal degree of kindred to the deceased are equally entitled to administration.

(e) The husband surviving his wife has the same right of administration of her estate as the widow has in respect of the estate of her husband.

(f) When there is no person connected with the deceased by marriage or consanguinity who is entitled to letters of administration and willing to act, they may be granted to a creditor.

(g) Where the deceased has left property in India, letters of administration shall be granted according to the foregoing rules, notwithstanding that he had his domicile in a country in which the law relating to testate and intestate succession differs from the law of India.

Succession Certificate

A succession certificate is an order of the competent court authorising a person to administer the estate of a deceased wherein such deceased has died intestate and his estate consists of only moveable assets.

For example Z dies intestate and leaves behind money in various bank accounts and shares of ABC company. Y, the legal heir of Z, will apply for a succession certificate to administer the estate of Z.

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.