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Drafting of Will and details of Witnesses who sign on the Will
07-Aug-2023 (In Civil Law)
My mother in law wants to make a Will in favour of her only child i.e my wife leaving her ancestral property made by her Late father. My querries:
(i) Can the Will be on a plain paper or it necessarily has to be on Stamp Paper
(ii) How is a Will probated and what does it mean and entail?
(iii) Can the 2 Witnesses be our relatives . Someone was saying that no relatives can sign as witnesses?
(iv) Do the Witnesses have to sign at the time of making Will or they can be made to sign anytime later also?
Let me know.
Query perused. Yes, Will can be executed on a plain paper and stamp paper is not required. Yes, 2 witnesses can be relatives, their is no legal bar. It is prudent that witnesses sign at the time of execution of the Will. Probate is a Certificate issued by a court that the will of a deceased is legally valid, and that the executors appointed under the will are authorized to administer his or her estate.
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Adv. Anubhav Kathuria
Delhi | 500+ Answers
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yes, the will can be made on plain paper and it is valid provided the same is signed by the testator i.e the person making the will/ owner of property and it requires to be signed by two witnesses.
witnesses can be anyone who is directly or indirectly related to the testator but they must sign in presence of the testator.
it is better to get the will registered as the stamp duty is negligible and removes future hassles .
A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’.
Probates are issued to the executors of the will, to authorize them with a seal of approval from the court. In case there are no executors of the will, only a simple letter of administration is issued by the court, and not a probate.
When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will.
probate is only in certain jurisdictions, such as Mumbai, Kolkota and Chennai.
thus, in simple terms probate legalises the will and provides authority to the executor to enable the process of execution of will of the testator
Application for Probate
A probate is issued with reference to Section 57 and Section 213 of the Indian Succession Act. The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached.
One can apply for a probate after seven days of the death of the Testator (or the person who makes the will and is the owner of the property to be distributed).
The application for probate, need to be made with the help of a lawyer or an advocate, to the High Court, under whose jurisdiction the property might fall. Although a lower court may be empowered to supply a probate for immovable properties of a small value, a probate from a higher court is required for high-value immovable assets.
Documents Required for Probate
While submitting a probate application, you need to submit certain documents that prove that:
a.The will is genuine and is the last will made by the testator.
b.The proof of death of the testator.
c.That the will is validly executed in clear conscience of the testator.
Grant of Probate
Once the application is submitted, it will be verified by the authorities and letters (notifications) will be sent out to the nearest kin of the deceased, intimating them of the issue of probate. A general notice is published for the public to view, and giving an opportunity for raising any objections to the grant of probate.
The probate is issued if no objections are received from any kin or any general public, and is done after the court fees are paid. The court fees depend upon the value of the immovable assets.
A probate, though it takes time to obtain and may cost you a tiny percentage of the inheritance (court fees + the lawyer’s fees), is essential, if there are multiple assets to handle, and those immovable properties are present in various states. Also, a probate is a completely fool-proof way of the handling such a matter and is imperative when high-value properties are being dealt with.
witnesses can be anyone who is directly or indirectly related to the testator but they must sign in presence of the testator.
it is better to get the will registered as the stamp duty is negligible and removes future hassles .
A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the estate of testator’.
Probates are issued to the executors of the will, to authorize them with a seal of approval from the court. In case there are no executors of the will, only a simple letter of administration is issued by the court, and not a probate.
When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will.
probate is only in certain jurisdictions, such as Mumbai, Kolkota and Chennai.
thus, in simple terms probate legalises the will and provides authority to the executor to enable the process of execution of will of the testator
Application for Probate
A probate is issued with reference to Section 57 and Section 213 of the Indian Succession Act. The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached.
One can apply for a probate after seven days of the death of the Testator (or the person who makes the will and is the owner of the property to be distributed).
The application for probate, need to be made with the help of a lawyer or an advocate, to the High Court, under whose jurisdiction the property might fall. Although a lower court may be empowered to supply a probate for immovable properties of a small value, a probate from a higher court is required for high-value immovable assets.
Documents Required for Probate
While submitting a probate application, you need to submit certain documents that prove that:
a.The will is genuine and is the last will made by the testator.
b.The proof of death of the testator.
c.That the will is validly executed in clear conscience of the testator.
Grant of Probate
Once the application is submitted, it will be verified by the authorities and letters (notifications) will be sent out to the nearest kin of the deceased, intimating them of the issue of probate. A general notice is published for the public to view, and giving an opportunity for raising any objections to the grant of probate.
The probate is issued if no objections are received from any kin or any general public, and is done after the court fees are paid. The court fees depend upon the value of the immovable assets.
A probate, though it takes time to obtain and may cost you a tiny percentage of the inheritance (court fees + the lawyer’s fees), is essential, if there are multiple assets to handle, and those immovable properties are present in various states. Also, a probate is a completely fool-proof way of the handling such a matter and is imperative when high-value properties are being dealt with.
Helpful?
19+
19+
witnesses sign at the time of making the will and at the of registering the will. For registration of will one needs to take online appointment after paying the e-egistration fee.
take help of an advocate if required
take help of an advocate if required
Helpful?
18+
18+
Adv. Srutisma Hazarika
Delhi | 25+ Answers
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