Registration of Will after Death / Probate of WILL

Firstly, we have to understand what is Will:

A Will is a legal declaration of the intention of the person as to how his estate i.e. assets and properties will be managed and distributed among the beneficiaries chosen by him after his death.

Why Will is necessary:

A will is necessary because, if a person dies intestate i.e. with executing a valid WILL. Then his entire properties will be distributed among all the legal heirs. And for claiming to be a legal heir, a succession certificate is required to be procured/obtained from the competent court, and only thereafter, the division or partition of properties among all the legal heirs will be done. It is to be noted that all the Class I heirs to the deceased person will inherit the property in equal proportion in case person dies intestate i.e. without executing a valid will.

Further to be noted that if a person dies intestate i.e. without execution a valid Will, a Letter of administration is also required to be obtained from the competent court in favour of any one person i.e. a legal heir or legal representative for managing the whole estate of the deceased person until the actual distribution or partition of the property of deceased person is done in accordance with the survivorship and succession certificate.

On the other hand, if a person has executed a valid will, it is a binding testamentary document and his assets and properties will be administered and disposed of among the beneficiaries chosen by the testator after his death.

A will takes effect only on the death of the person who made it and can be revoked or amended at any time by him before his death.

Who can make a Will: Every person of sound mind not being a minor may dispose of his property by will.

Registration of Will:

Under the Registration Act 1908, Registration of a Will is optional. Which means a Will whether it is registered or unregistered is equally valid and enforceable in India.

 What should be the Wording of wills and what is a valid Will: It is not necessary, that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known from the will.

A will can be made on plain paper. It should be signed by the Testator and witnessed by the two people who will also put their signature on the Will to make it a valid Will.

So, a valid will means, it should be in writing and signed by the testator in the presence of two witnesses who will also put their signature on it.

 Why people usually not register Will: It is because, the testator of Will can revoke or amend the Will at any time and as many times as he wishes to do so as per his choice until he is of sound mind and competent to dispose of his property. Whereas a registered will can be cancelled only upon approaching the sub-registrar office where the Will was registered.   

 What is Probate: Probate is an authentication of Will by the competent court that the Will is genuine.

The competent court while granting probate of a Will, generally inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact and knowledge of which may conduce to the right application of the words which the testator has used.

Why Probate of Will is required: Probate is required only in case a Will is unregistered to get authentication from the court that the Will is genuine.

 Appointment of Executor: Probate shall be granted only to an executor appointed by the will. However, in case no person has been named in the Will as Executor, then the Court on its sole discretion will appoint any legal heir or any other person beneficiary as Executor and grant probate of Will.

 Court Fee on probate of Will: In case of unregistered Will, the executor of any beneficiary under Will is required to apply to the competent court for Probate of Will to get it authenticated. One very important thing to be noted here is that, the Court Fee is payable on probate of Will. Court fee varies from state to state. In Some states, there is ceiling of maximum court fee on probate of Will. In the NCT of Delhi, the Court Fee on Probate of a Will or Letter of Administrator is 4 percent of the amount or value of the property in respect of which the grant of Probate or Letter of Administration is made, in case the value of the property exceeds fifty lakhs rupees.

Now I would like to apprise you all about registration of will after death of the testator:

Under Section 40 of the Registration Act 1908, after death testator i.e. person who made a will, any person named or claiming as executor or otherwise under a will, may present the Will to any Registrar or Sub-Registrar for registration.

When such Will is presented by Executor for registration of Will after death of testator, the same may be registered in the same manner as any other document, if the registering officer is satisfied—

(a) that the will was executed by the testator;

(b) that the testator is dead; and

(c) that the person presenting the will is entitled to present the same under section 40 of the Registration Act.

Most important point which is to be noted here is that, in case of registered Will, no probate or letter of administration is required, hence, no situation arise for payment of court fee.

Now, I would like to highlight some important points relating to registration of Will after death:

  1. Executor is required to make an application to the Sub-Registrar for registration of will after death of testator along with the following documents:
  • Copy of Will
  • Affidavit from Executor
  • Affidavits from both the witnesses
  • Copy of Aadhar Card of Testator
  • Original copy of Death Certificate of Testator.
  1. Publication in the local newspapers (one in English Daily and one in Hindi Daily) by the Executor inviting objections from the public, if any one claiming under the said will or disputing the genuineness of the Will.
  2. After verifying the application and documents, and if Sub-Registrar is satisfied, he may send notices to the Executor and both witnesses for registration of will after death.
  3. During registration, the Sub-Registrar may also inquire into every material fact relating to the Executor, beneficiaries, witnesses and properties under Will and circumstances of execution of Will and circumstance of death of testator etc. and also require from the Executor and both the witnesses to execute and submit undertaking and affidavits declaring that Will is genuine and have been executed in their presence.

It is to be noted that Will after death can be registered only if the Sub-Registrar is satisfied with the genuineness of the documents and witnesses.

If anyone need any kind of legal help, support or advice, he can contact me any time. I will certainly help them out.