Introduction to Testamentary terms

Testate : When a person dies leaving a Will.

Intestate Succession : When a person dies without leaving a Will.

Testator : Testator is a person who makes a Will.

Legatee/ Beneficiary  : Legatee/ Beneficiary is a person who inherits the property under a Will.

Executor : An executor is a person who is appointed by a testator to execute his Will. An executor is duly bound to distribute the assets of the testator as per provision of Will.

Probate

‘Probate’ means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator. A probate can be granted only to the executor appointed under the Will. Further, a probate is essential if the Will is for immovable assets in multiple states. The executor is the most important person in the Will. An executor has a duty to collect and realize the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator. The duty of the executor is to probate the Will in a manner known to law. The court shall grant probate only to an executor who has been named in the Will.

Letter of Administration

Letters of Administration are usually issued to the persons entitled under the rules of intestacy (or their guardians if they are minors) where the deceased without a Will.

When someone dies without a will, it’s called dying intestate. Even though a person dies intestate, they still will likely have assets and debts that need to get resolved. The person’s remaining assets are distributed to their heirs, who are determined by state law. Assets go as per class heirs.

Even though there is no will, someone must still do the work of winding up the estate’s affairs and distributing the assets. The court appoints an administrator, who fulfills basically the same role as an executor. The administrator normally must be the deceased’s spouse or next of kin, but it could be anyone with an interest in the estate.

The laws about this are different in each state. A letter of administration is issued to the administrator, giving them the legal authority to act on behalf of the estate.

Succession Certificate:

A Succession Certificate establishes who the legal heirs are and the authenticity of the successor. It is a Certificate given to the successor of a deceased person who dies without leaving a will. The list of debts, securities and assets of the deceased is mentioned. It indicates the relation of the petitioner with the deceased. Along with providing details of other surviving legal heirs and that the deceased died intestate. And the information about the time, date and place of death of the deceased. It means that the certificate holder has authority over the deceased person’s assets of the deceased. The assets may include Insurance, Mutual Funds, Pension (in Employees Provident Fund or otherwise), Retirement Benefits or any other service benefits. In other words, it helps the grantee or the receiver, to recover the debts due to the deceased person.

Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries. 

Application for Probate

The application for probate shall be made by Petition. There shall be annexed to the petition a copy of the last will and testament of the deceased. If the will be not in the English language, an official translation thereof shall be annexed.

The original will shall be filed separately and kept by the Prothonotary and Senior Master in the strong room of his office in Bombay High Court.

There shall also be annexed to the petition:-

• A schedule of the property and credits which the deceased died  possessed of or entitled to at the time of his death which have or are likely to come to the petitioner’s hands,
• A schedule showing the debts of the deceased and all other items which by law the petitioners is allowed to deduct for the purpose of ascertaining the net estate of the deceased, and
• A schedule of property ,if any, held by the deceased is trust for another and not beneficially or with general power to confer a beneficial interest. The petition shall be in such variations as the circumstances of each case may require and shall be accompanied by-
• The vakaltnama signed by the petitioner, unless the petitioner appears in person;
• The executor’s oath;
• The affidavit of one of the attesting witnesses, if available; and
• A copy of the estate duty return, if filed with the Controller of Estate Duty.

Verification of petition. – The petition for probate shall be subscribed by the Petitioner and his Advocate on record (if any), and shall be verified by the petitioner in the manner prescribed for verification of plaints.

Payment of Court fess

The Court-fees of the notice issued by the Prothonotary and Senior Master shall be paid within three days after receipt of such notice.

Delay in application

In any case where an application for probate is made for the first time after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the Petition. Should the explanation be unsatisfactory, the Prothonotary and Senior Master may require such further proof of the alleged caused of delay as he may deem fit.

Unsigned or unattested will

 In cases in which it is not necessary that a will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator’s property, the testator’s intention that it should operate as his testamentary disposition shall be clearly proved by affidavit or otherwise.

Notice of next-of-kin

1.  In all applications for Probate notice of the application shall be given to all the heirs and next-of-kin of the deceased mentioned in the Petition except to those whose consent has been filed in the proceedings.
2. In all applications for probate the citation shall be affixed on some conspicuous part of the Court house and also in the office of the Collector of Bombay.
3. No grant of probate shall be made until after the expiry of fourteen clear days from the date of the service of the citation or notice, and from the publication there of in newspapers, if any, and from the affixing thereof on the court house and in the Collector’s Office as the case may be, unless the Judge in Chambers otherwise directs.

Issue and return of processes

All processes and citations shall issue from and be returnable to the office of the Prothonotary and Senior Master and shall be prepared, signed and dated by him or one of his assistants and sealed executed and returned, in the same manner as processes in suits on the Original Side of the Court.

Service of citations

Citations shall be served personally when possible. Personal service shall be affected by leaving a true copy of the citation with the party cited and taking his acknowledgement on the original.

Caveat

Any person intending to oppose the grant of probate shall file a caveat in within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record.

Affidavit in support of Caveat

An affidavit in support of aCaveat shall be filed within eight days from the date of the filing of theCaveat, notwithstanding the Court vacations. Such affidavit shall state theright and interest of the caveator, and the grounds of the objections to theapplication.

A copy of the said affidavit shall be served by the caveator onthe petitioner or his advocate on record. If such affidavit be not filed withinthe prescribed time, the caveat shall not prevent the grant of probate. No such affidavit shall be filed after the expiry ofthe said eight days without an order of the Judge in Chambers.

Procedure on affidavit in support of caveat being filed

• Upon the affidavit in support of the Caveat being filed, the Petition shall be numbered as suit in which the Petitioner shall be the Plaintiff and the Caveator shall be Defendant. Notice of the fact that the Petition has been renumbered as a suit shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. The Petition shall be treated as the plaint and the affidavit in support of the Caveat shall be treated as the written statement of the caveator. The procedure in such suit shall, as nearly as may be, be according to the procedure applicable to civil suits on the Original Side of the Court.
• Where there are two or more caveators and each of them has filed an affidavit in support of his caveat, separate suit numbers shall not be given to the petition, but all the caveators shall become party defendants in one suit.

Certified copies

Certified copies of wills and other documents furnished by the office shall be signed by the Prothonotary and Senior Master or one of his assistants and shall be sealed with the seal of the Court.

Registers of grants

Grants of probate issued during a calendar year along with the wills and their translations, if any, shall be copied out in registers to be maintained by the Prothonotary and Senior Master.