Probate of a Will
Probate is a court order that certifies the will as genuine and confirms the executor's authority to administer the estate. Key points:
When Probate is Required: For wills executed by Hindus, probate is mandatory only in the Presidency towns of Kolkata, Mumbai, and Chennai. In practice, financial institutions (banks, mutual funds) routinely insist on probate for high-value estates even outside Presidency towns. For Christians and Parsis, probate is always required.
Where to File: For properties in Kolkata, probate is obtained from the Calcutta High Court (Original Side) or the District Judge at Alipore, depending on the value.
Procedure: The executor files a petition along with the original will, death certificate, schedule of assets, and list of legal heirs. Notice is published in newspapers and served on the legal heirs. If no objections are filed, the court grants probate.
Contested Probate: If a legal heir objects (e.g., on grounds of forgery, undue influence, lack of testamentary capacity), the probate petition becomes a contested suit requiring trial. Advocate Shaw represents both propounders and objectors in contested probate proceedings.
Letters of Administration
When the deceased dies intestate (without a will), or when the will does not name an executor, or when the executor is unwilling or unable to act, the court grants letters of administration to the person entitled to administer the estate. The procedure is similar to probate — a petition, notice to legal heirs, and grant of letters of administration.
Advocate Shaw assists legal heirs in obtaining letters of administration and distributing the estate accordingly.
Succession Certificate
A succession certificate is a court order that certifies the right of the applicant to inherit the debts and securities of the deceased (bank accounts, fixed deposits, shares, bonds, etc.). It is obtained from the civil court under the Indian Succession Act, 1925.
A succession certificate does not determine title to immovable property — for that, probate or letters of administration (or a civil suit for title) is required. However, it is essential for accessing the deceased's financial assets.
Advocate Shaw assists clients in obtaining succession certificates quickly, often within 3-6 months in uncontested cases.
Intestate Succession Under Hindu Law
The Hindu Succession Act, 1956, governs intestate succession among Hindus. Key rules:
Class I Heirs: These heirs take simultaneously and to the exclusion of all others. They include son, daughter, widow, mother, son/daughter of a predeceased son, son/daughter of a predeceased daughter, widow of a predeceased son, etc.
Class II Heirs: If there are no Class I heirs, Class II heirs inherit in the order of priority. They include father, siblings, grandchildren, etc.
Agnates and Cognates: If there are no Class I or Class II heirs, agnates (relatives through male lineage) inherit, followed by cognates (relatives through female lineage).
2005 Amendment: Daughters were granted equal coparcenary rights in joint family property by the Hindu Succession (Amendment) Act, 2005.
Full Blood Preferred to Half Blood: Full-blood relations are preferred over half-blood relations.
Challenging a Will
A will can be challenged on several grounds:
Lack of Testamentary Capacity: The testator did not have the mental capacity to understand the nature and effect of the will at the time of execution.
Undue Influence: The testator was coerced or unduly influenced by a beneficiary.
Fraud or Forgery: The will is forged or the testator's signature was obtained by fraud.
Improper Execution: The will was not signed by the testator in the presence of two witnesses, who also signed in the presence of the testator.
Suspicious Circumstances: The circumstances surrounding the execution of the will raise suspicion (e.g., the testator was old and infirm, and the will was prepared by a major beneficiary).
Advocate Shaw handles will challenges with a strategic approach, gathering medical evidence, handwriting analysis, and witness testimony.