Probate is the legal process of administering a person’s estate after their death.
If you have a last will, probate will involve proving that your will is legally valid, executing your instructions and paying applicable taxes.
Having a clearly written will is one way to make the probate process easier on your loved ones. After all, your will doesn’t only specify who should inherit what. It also designates who you’d like to take care of your kids if both parents were to pass away, plus the executor who should fulfill the instructions in your will.
If you die without a will, the probate court will figure out how to distribute the person’s stuff.
If you have mindfully prepared an Estate Plan, you’re smart. Creating a Will or Living Trust makes a difficult life-event just a little easier on your loved ones.
In India, a probate has been defined under the Indian Succession Act, 1925 as under:
‘Probate’ means the copy of a Will, certified under the seal of a court of competent jurisdiction, with a grant of administration to the estate of the testator.
The person who makes a Will, expresses his wishes to be executed after his death by certain persons who are generally named in the Will. The persons so named to execute the Will, are called its executors. A probate is a method through which a Will is certified, under the seal of a court. A probate establishes and authenticates the Will finally. A probate is a conclusive proof of the fact that the Will was executed validly and is genuine and the last Will of the deceased.
Probate is compulsory in certain Jurisdictions if a person resides in Mumbai, Chennai or Kolkata or has property in these Jurisdictions Probate is compulsory. For others, it is not compulsory but for others also it always recommended to go for probate as the title to the assets is stronger after a probate has been obtained.
A probate is issued by the court, when a person dies testate i.e. having made a will and the executor or beneficiary applies to the court for grant of probate. In case a person has not made a ‘Will’ his legal heirs will have to apply to the court for grant of a succession certificate which will be given as per applicable laws of inheritance.
What has to go Through Probate Court?
If you do not have a Will, everything you own will go through probate court. The following will always go through the process, regardless of what your Estate Planning states.
- Any inheritance where the Beneficiary predeceases the giver: If a named-beneficiary passes away before you do and you fail to update your Will, the courts will become involved in deciding how to settle this part of your estate.
- Non-titled property: Non-titled property is anything you own that doesn’t have paperwork. Household items such as appliances, clothing, furniture and other general items could fall into this category. If your Will names these items and appropriately states your wishes, you can eliminate probate.
- Partner-owned investment property: In cases where properties are titled as “tenants in common,” and where clear instructions aren’t present in a Will, a probate court will step in to help determine how your share is passed down. Keep in mind, if your Will makes your wishes clearly known, the process becomes simplified.
- Sole ownership property: Property that’s titled in solely in your name will go through probate to determine ownership.
What does not have to go through probate court?
Certain assets and property will not go through probate. By properly planning, you can help avoid probate for any of the following.
- Items that have a Beneficiary named: Naming a Beneficiary on an asset means you can avoid probate. For example, life insurance policies have named Beneficiaries, so proceeds go directly to them without having to go through probate. It may include property and assets such as bank accounts, real estate, retirement accounts, stocks, insurance policies, etc.
- Items placed inside a Living Trust: Because a Trust owns the items inside it, when you pass away, anything in your Trust can go to your Beneficiaries as specified by the Trust, thus avoiding the probate process.
- Jointly titled property (with Survivor’s Rights): Property titled jointly with Survivor’s Rights will automatically go to a Survivor after you pass. There is no need for the property to go through probate in this case.