FREQUENTLY ASKED QUESTIONS
These questions have been generically answered. Each persons query and response will change based on facts and circumstances of that person's case. You are requested to take your own legal advise and not rely or treat this as legal advise.
DOES A WILL NEED TO BE COMPULSORILY REGISTERED?
No, a will does not need to be compulsory registered. If a will is correctly executed, it can be probated. There is a plethora of judgments from the Supreme Court of India which state that a will does not need to be compulsory registered.
DOES A WILL NEED TO BE ON STAMP PAPER?
No. A will does not need to be on stamp paper.
IS A PROBATE COMPULSORY IN INDIA?
A probate is required if a will has been made within the territories of Kolkata, Chennai and Mumbai, or if there is immovable property situate in any of these areas.
As per SEBI circular, Succession certificate or probate of will or will or letter of administration or court decree, as may be applicable in terms of Indian Succession Act, 1925 is required for transmission of securities with a value of more than Rs.15,00,000 (Rupees Fifteen lakh) held in dematerialized form and Rs.5,00,000 (Rupees Five lakh) for securities held in physical form.
WHAT IS DIFFERENCE BETWEEN PROBATE AND LETTERS OF ADMINISTRATION (LOA)?
A probate is required to be filed when a will has been executed. A letter of administration (LOA) is required to be applied for when a person has died intestate (i.e., without making any will). These are procedural terms used.
I HAVE NOMINATED MY HEIRS IN THE RESPECTIVE ACCOUNT DO I STILL NEED TO MAKE A WILL?
A nomination does not entitle the nominee to the asset/security bequeathed by way of nomination. This can only be done by way of a testamentary dispossession i.e., by making a Will.
Let us take 2 examples: Example 1: X and Y are married, and they have 1 son, P. X, Y and P are all Hindus. X has nominated his wife Y and his son P as 50% nominees in his flat. This would work because under the normal inheritance laws of Hindu’s X and P would be entitled to 50% of the asset under the Hindu Succession Act.
Example 2: X and Y are married, and they have 2 sons, P and Q. X, Y, P and Q are all Hindus. X has nominated his wife Y and his son P as 50% nominees in his flat. This would not work because Y, P and Q are all heirs of X under Hindu Succession Act. The exclusion of Q cannot be done by way of nomination.
I HAVE ONLY 1 FLAT IN MUMBAI, WHICH I PLAN ON BEQUEATHING TO MY SON, CAN I ONLY DO IT BY WAY OF NOMINATION? DO I NEED TO MAKE A WILL?
Maharashtra Co-operative Societies Act, 1960 has been recently amended and a section has been introduced “S.154B – 13” requiring testamentary documents or succession certificate or legal heirship certificate or document of family arrangement executed by the persons, who are entitled to inherit the property of the deceased Member.
A nominee is only entitled to be added as a provisional Member after the death of a member till legal heir or heirs or a person who is entitled to the flat and shares in accordance with succession law or under will or testamentary document are admitted as Member in place of such deceased member.
Please also see example above on there being more than 1 heirs and the requirements of testamentary dispositions.
I AM A BENEFICIARY UNDER A WILL, HOWEVER THE EXECUTOR DOES NOT WANT TO PROBATE THE WILL, NOR PAY THE BEQUEST, WHAT IS MY RECOURSE?
As a beneficiary under the Will, you can file for grant of letters of administration. A citation will be served on the executor, calling upon the executor to accept or renounce his executorship.
I WANT TO CONTEST A WILL, WHAT DO I NEED TO DO?
If a citation has already been served, you will have to file your caveat along with affidavit in support within 14 days of the citation being served on you.