A Probate is a certificate granted by the court in respect of a Will, which proves the validity of the Will and grants rights to the  executor nominated under the Will to administer the estate of the deceased testator in the manner set out in the Will.

If a person wrote a Will and nominate any person to administer his/her estate in the manner set out in the Will, the deceased is called testator and the nominated person is called executor.

After demise of the testator the executor or the beneficiaries can apply to court to establish the validity of the Will. Probate is not mandatory in case the Will is made outside Kolkatta, Chennai or Mumbai and does not deal with immovable properties in Kolkatta, Mumbai or Chennai.

As per section 293 of the Indian Succession act, the probate petition may be filed after 7 days of death of the testator. The limitation to file the probate petition is not given in the Act however Article 137 of the Limitation Act is residuary clause and provides, for filing of the suit, within three years from the date when the right to sue accrues. The Supreme Court has clarified thsat the right to apply for probate is a continuous right and the right may be exercised at any time after the death of the deceased, as long as the right to do exists. The right to apply may therefore accrue not necessarily within three years from the date of the deceased’s death but when it becomes necessary to apply which may be any time after the death of the deceased, be it after several years.

The probate petition is to be filed in Civil administrative Judge/district court within the territorial jurisdiction of which the deceased was residing at the time of his death or have some portion of the property mentioned in the Will. The probate will be filed in prescribed format alongwith original or certified copy of the Will, death certificate of the deceased. All the legal heirs who may or may not be beneficiary in the Will shall be made parties to the petition.

Whereas if a Will does not nominate an executor. The beneficiary of the deceased will have to file an application for letter of administration. Further if a person dies intestate then also an application for letter of administration is filed seeking administrative rights pertaining to the deceased estate.

Further according to section 234 of the Indian Succession Act, if the executor, residuary legatee or representative of residuary legatee does not exists/declines or is incapable of acting or cannot be found then the person who would have been entitle to administer the estate in case of deceased died intestate would be entitled to file an application for Letter of administration.

Section 213(1) of the Act makes it mandatory to obtain a probate /LOA before execution of the Will. In simple words an executor or the legatee can only perform their testamentary operation and their respective disposition of the deceased estate when they dully obtain a probate /LOA from out of competent jurisdiction.

SUCCESSION CERTIFICATE (Section 370-390)

The Succession Certificate is granted to inherent debt/securities to the legal heirs of the deceased who died instate. Status of certificate holder is as of manager or trustee of the legal heir of the deceased.

According to section 370 of the Act it is clear that Succession Certificate cannot be granted to any debt / securities to which the right are required to be established by Probate/Letter of Administration.

Succession certificate is helpful while dealing with movable assets like provident fund, bank deposits, shares, loans etc but not establish administrative rights pertaining to an immovable properties of deceased.

Letter of Administration can be granted for whole estate (i.e. movable as well as immovable) of deceased died instate whereas Succession Certificate can be issued with regard to debt/securities only.

The application for seeking Succession Certificate will be filed to Civil Administrative /District court within whose jurisdiction the deceased ordinarily resided at the time of his death or if at the time of his death no fixed place of residence, within whose jurisdiction any part of property of the deceased may be found.