Wills, Probate and Succession- Full Guide

Submitted by asandil on 6/4/2023

The Laws of Succession in India

Laws of Succession deal with the legal guidelines for distributing a decedent’s assets. These include the sequence in which one person succeeds to the property or estate of the deceased in preference to all others, one person after another, or any one person in particular. Perpetual-existing corporations are not covered by this and are subject to different laws regarding winding up, reorganization, and closure.

The laws of succession can be roughly divided into two categories: first is if the deceased has left behind a valid and enforceable ‘Will’; and second is, where a person died without leaving behind such ‘Will’.


What is a will?

A person’s intentions and final wishes are laid forth in a will, which is a legal document that must be followed after death. The testator or testatrix is the person who creates the will, and only they have the power to do it while they are still alive. The dead person’s estate would be divided in line with the terms of the Will if it is determined to be legitimate and enforceable.

Any person who is competent in entering into an Agreement may make a will. Anyone who is under the influence of alcohol, drugs, or any other condition that prevents them from exercising their free will or understanding the consequences of their actions, including minors or those who are inebriated, cannot make a decision while under such conditions.

The Indian Succession Act, of 1925, which governs wills, does not provide a certain format or technical prerequisite. The following are the mandatory requirements:

  • It must be worded in a way that makes the writer’s (also known as the Testator’s) intention evident.
  • Since the goal of the document is to carry out the Testator’s wish, minor inaccuracies in the property’s name or other facts may be overlooked if the entire document is reviewed to ascertain the goal.
  • The Testator and two witnesses must sign it. Those who are unable to sign (due to illness or illiteracy) can place their thumb impression. To demonstrate that it is put to give effect to whatever occurs above or before it, the signature should be at the bottom or end of the document.
  • Witnesses should not be beneficiaries under the Will and should be independent individuals. Any dispositions that have been made in their or their wife’s favor are invalid. However, it would be OK if he signed as a witness. There are no defined technical terms or formats in the Act. Will not have to be written on stamp paper, though.

What is probate?

In essence, probate is the process of “proving the will” or “proving the validity of the will.” According to the Indian Succession Act of 1925, “A copy of the will certified under the seal of the court of competent jurisdiction with a grant of administration of the testator’s estate” is what is meant by “probate.”

What are the circumstances under which probate is mandatory?

As per the Indian Succession Act of 1925, one needs probate when all the below conditions are fulfilled-

  • A will that is geographically located within the state of West Bengal, and the municipal limits of the metro cities of Chennai and Mumbai.
  • The maker of the Will is a Hindu, Jain, Sikh, or Buddhist who resides in Mumbai, Chennai, or West Bengal.
  • The Will deals with either mobile or immovable real estate and is located in Mumbai, Chennai, or the State of West Bengal. It is preferable to get probate in situations where there is a chance that Will’s validity may one day be challenged on any grounds, even though it is not required in all other circumstances.

What is Probate of a Will?

‘Probate’ is a verb that means to vouch for or validate. It is a process wherein the Will is officially recognized by the court as the testator’s last and legitimate Will. Indian Succession Act, of 1925 states that “probate of a will, when granted, establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.”

It means that when a will is probated, it becomes legally recognized with a court seal and gives the executor the power to divide the testator’s assets according to his or her wishes while also using the estate’s assets to settle debts and pay creditors.

The Requirement of Probate if There is a Will?

No, it is not mandatory to probate a will. There are a number of situations in which it is not essential to do so, though state laws may differ. When a property is held in joint names with a person’s children, spouse, or another person, it automatically goes to the surviving owners by operation of law and no will needs to be probated in order to distribute it.

But when there is a difficulty with the current Will, probate is necessary. Or the beneficiaries listed in the probate are predeceased by the testator. If the deceased testator was the only owner of the estate, there may be no beneficiary listed in the will.

How to apply for probate of a will?

To obtain the probate of a will, one will need to follow the below-mentioned processes-

  • The original will and a petition for a grant of probate must be submitted to the court by the will’s executor. The petitioner in the lawsuit, the executor, is required to include the names and addresses of the deceased person’s rightful heirs so that they can be notified.
  • Depending on the value of the assets, the executor will be required to pay the relevant court expenses.
  • The petition must be submitted before an appropriate court. A higher court may be required to grant probate for high-value immovable properties through an advocate under the pecuniary jurisdiction (the jurisdiction of the court depends on the petition’s monetary worth).
  • The court will then require the petitioner to prove the testator’s decease, demonstrate that the testator’s will was properly signed, and attest that this was the testator’s final testament.
  • The court next requests objections by notifying the deceased’s relatives of their right to object, if any, and by ordering the publication of a citation of the probate petition online to alert the general public.
  • The court grants probate if there are no objections.
  • The probate petition becomes the original suit if there are objections, at which point the parties will present evidence and make their cases. Based on the arguments and evidence the court will rule in the probate dispute. As the District Court grants probate, the costs vary from state to state. The fees are based on the assets’ worth which is the petition’s subject matter. The petitioner is responsible for paying both the court fees and the solicitor’s expenses. These expenses will be covered by the dead person’s estate.

Intestate succession:

Intestate Succession refers to a succession that occurs when a person passes away without leaving a legally binding will. The principles of asset distribution in this case are based on the personal laws that applied to the Deceased.

If a person only creates a will for some of their assets and leaves the rest out, or if their will is invalid for some other reason, the remainder of their assets will pass according to the rules of intestate succession.

Hindus, Muslims, and Christians, all have different Laws of Intestate succession

Hindu – the Hindu Succession Act, of 1956 codifies the law of intestate succession for Hindus, which also includes Buddhists, Jains, Sikhs, and members of the Arya Samaj. In this case, the deceased’s property was distributed according to the following principles;

Male Hindus: there are four categories of legitimate heirs. If someone is available, the property will only pass to the legitimate heirs listed in Class 1. Wife, son, daughter, mother, son, daughter of predeceased son, widow of the predeceased son, and a few other such relatives are examples of Class 1 relatives. The widows, moms, and each kid would receive an equal part of the property. If any of the children have already passed away, his spouse and children will each receive a portion of the estate. For instance, A passes away. B, his wife, C, his mother, D, his older son, F, his younger son, and G, his daughter, are the ones he has left behind. A few years ago, E, his middle son, passed away, leaving behind his wife E-1, and two children, E-2 and E-3. Each legitimate heir would receive one of the six portions of his estate. The deceased E’s wife and children would each receive one part.

If there isn’t a relative in Class 1, the inheritance will go to the legal heirs listed in Class II. The relatives in Class II have been listed in order, and it is expected that the one whose name appears first will be filled in before the others. If the first designated relative is not there, the second person will only be admitted in full, and so on. In this order, the father is mentioned first, followed by the brother or sister, and so on. As a result, the father will receive the entirety of the estate if there is no family in Class 1 and he is present. The deceased person’s brothers and sisters will receive the estate if the father is not present.

Agnates (relations only through males) and Cognates (relations not wholly through males) are Class III and IV, respectively. If neither class II nor any other heirs exist, then the succession will go to the deceased person’s agnates or if they fail, cognates. The estate will pass to the government if there are no Agnates and Cognates as well. The one with the closest link is favored among the Agnates and consequently in cognates.

Class 1 relatives for Hindu women are roughly comparable to husbands, sons, and daughters, even the children of a son or daughter who has passed away. If none of them are present, the estate will go to the husband’s heirs. If the husband has no heirs as well, it will pass to the deceased’s mother and father, if they are still alive. Regarding property that a Hindu inherits from her father or mother, there is one specific rule. In the event that she does not leave behind a son or daughter, such a property would fall back to her father’s legal heirs.

The legislation also states that if two persons pass away simultaneously, such as in a vehicle or plane accident, and it is impossible to determine the precise moment of each person’s passing, it will be assumed that the elder person passed away first unless the reverse can be demonstrated. A murderer’s property cannot be inherited by the person who committed the crime. However, his successors are not similarly disqualified and it will be assumed that such a murderer passed away just before the passing of a victim of murder. These clauses are crucial because they have an impact on property distribution and line of succession.

Muslims: There are different personal laws for Shias and Sunnis, which are not codified in any Statute. Personal law limits bequests for Sunnis adhering to Hanafi Law (the majority of Muslims in India do so) to a maximum of one-third of the inheritance that is left over after paying for burial costs, unpaid domestic servant wages, debts, etc.

The legal heirs will get the remaining estate distributed among them. The three classes of legal heirs are mentioned below.

Sharers- These legal heirs are sanctioned to a prescribed share of the estate.

Residuaries – They will get the leftover estate, if anything remains sharers get their prescribed shares.

Distant kindred- The other relatives who are neither sharers nor residuary are referred to as distant kindred. Only if there are no Sharer or residuary will they receive it.

Meher i.e. Dower promised by the husband would be 1st charge (priority debt) if the same has not been paid by the deceased when he was alive.

Christians: In the case of Christians, the widow or widower receives a one-third inheritance, with the remaining portion going to the lineal descendants. If there are no lineal descendants, half of the estate goes to the widow, and the remaining portion is distributed to other relatives, sometimes designated kindred. Each child or, in the case of a predeceased child, all of his offspring shall get an equal portion among lineal descendants. The father is given the first preference, In the kindred, followed by the mother, brother, and sister (or their children together if anyone is predeceased) equally in the event that he is predeceased.