What is will and probate?
Also called: vasiyat, vasiyatnama, probate, letters of administration
A will says who gets your property after you die; probate is a court's certificate that the will is genuine, granted to the executor named in it. Probate is compulsory only in some places, chiefly Mumbai, Kolkata and Chennai.
A valid will in India needs very little ceremony. Section 63 of the Indian Succession Act, 1925 requires it to be signed by the testator and attested by two witnesses who saw the signature. It needn't be on stamp paper, and registration is optional, though a registered will is harder to challenge because the sub-registrar's record is independent evidence that the testator appeared and signed. Beneficiaries shouldn't act as witnesses.
Probate is where geography comes in. Section 213, read with Section 57, makes probate compulsory for wills made by Hindus, Buddhists, Sikhs and Jains within the old Bengal Presidency and the original civil jurisdiction of the Madras and Bombay High Courts, and for wills dealing with immovable property located there. Put simply, if the flat is in Mumbai, Kolkata or Chennai, the heirs can't establish a right under the will in court without probate. In Delhi, Bengaluru, Hyderabad or Pune it's optional, though a bank, society or buyer may still ask for it when the will is unregistered or a family member objects.
The petition goes to the district court or, in those three cities, the High Court on its original side. Notice goes to the legal heirs, and if nobody objects the grant can come within six months to a year. A contested probate turns into a full suit and can run for years. Court fees are charged on the value of the estate on a scale each state sets.
Muslim succession runs on different lines. A Muslim can leave only a third of the estate by will without the heirs' consent, and probate isn't compulsory.
A widow in Dadar inherits her husband's flat under his registered will. Before a buyer's bank will lend against that flat on resale, she needs probate from the Bombay High Court, with court fees calculated on the value of the estate.
Families assume the nomination filed with the society or bank overrides the will. It doesn't: a nominee holds the property for the legal heirs, and the will or succession law decides who actually owns it.
Questions people ask about will and probate
Is a registered will better than a notarised one?
Neither is legally required, and notarisation adds little. Registration helps because the sub-registrar's record is independent proof that the testator appeared and signed, which makes a forgery claim harder.
What's the difference between probate and a succession certificate?
Probate proves a will and is granted to the executor. A succession certificate lets heirs collect debts and securities of someone who died without a will; for immovable property without a will, heirs usually rely on a legal heir certificate or letters of administration.