Probate is the court's certification that a will is valid and that the executor named in it may act. In Kolkata the petition is filed before the Calcutta High Court in its testamentary jurisdiction, or before the district court where the value or the property so requires, under Section 276 of the Indian Succession Act 1925. It matters most when the will deals with immovable property in West Bengal, or when a bank, a registrar of companies or a depository insists on probate before it will part with an estate asset.
When probate is needed
Probate is compulsory where a will relates to immovable property within the ordinary original civil jurisdiction of the Calcutta High Court. Elsewhere it is optional, but it becomes practically necessary when the executor wants a bank, a company or a depository to transfer assets, or when a buyer or a registrar wants a court-backed authority. If there is no immovable property and no institution demanding it, an executor can often act on the will without probate; but the moment a third party refuses to act, probate becomes the answer.
The petition
Under Section 276 the executor or the person applying files a petition setting out:
- the time and place of the deceased person's death;
- the petitioner's interest and the fact that the will is annexed;
- the value of the property covered by the will, as far as it can be ascertained;
- that the will was validly executed and that the testator was of sound mind;
- the names and addresses of the heirs and of the executors, so that they may be cited.
The original will or a certified copy is filed with the petition. A registry will return a petition that does not name the heirs who must be cited, or that leaves the valuation blank.
Citation and notice to heirs
Once the petition is admitted, the court directs citation to the heirs and to any executor who is not the petitioner, and often publication. This exists so that anyone who says the will is forged, later in date, or made under pressure can come forward. If a heir files a caveat, the matter ceases to be a simple probate and becomes a contested testamentary suit, tried on evidence. The estate cannot be distributed freely until the dispute is decided. Where a dispute is likely, coordinating the probate with wider civil litigation is often necessary.
The executor's role and the inventory
The executor is the person the will names to carry out its terms. On grant of probate, the executor is treated as the deceased person's legal representative for the estate and may collect assets, pay debts and distribute the balance as the will directs. The executor should prepare an inventory of the estate — every account, share, deposit and property — and, where the court or beneficiaries require, file accounts. Paying the wrong person, or distributing before debts are cleared, exposes the executor to personal liability, so the inventory and accounts are not formalities.
Court fee and valuation
Court fee on probate is a percentage of the value of the estate, at the rate the state prescribes, so the valuation drives the cost. The valuation must reflect the immovable property and the movable assets honestly. Because getting the figure wrong causes a query or a fresh valuation, it is normal to take a considered view first and support it with documents. For the drafting side, see the registration formats.
Documents to attach
- The original will and a copy.
- Death certificate of the testator.
- Petition and affidavit of the executor.
- Valuation of the estate and the court fee.
- Details of heirs and executors to be cited.
- Proof of the petitioner's identity and, where needed, of the attesting witnesses.
When the will is disputed
If a heir alleges the will is fabricated or that the testator lacked capacity, the court hears evidence from the attesting witnesses and any medical or other proof. Suspicious circumstances — a will made shortly before death, an unnatural exclusion of a heir, or a beneficiary who prepared the document — are weighed seriously. The party propounding the will must prove it was duly executed and that the testator understood what he or she was doing. In such a case, expect a longer trial and a decision on evidence, not on the papers alone. The property registration team can help marshal the proof before the case is filed.
Common mistakes
- Filing without naming every heir who must be cited.
- Leaving the valuation vague, which invites a query.
- Distributing assets before the citation period ends.
- Assuming probate equals ownership — probate proves the will, it does not by itself settle a title dispute over a third person's claim.
Common questions
Is probate always required in West Bengal?
It is required for a will dealing with immovable property within the Calcutta High Court's original jurisdiction, and it is practically required whenever an institution or buyer insists on it. Otherwise an executor may often act without it.
Who can apply for probate?
An executor named in the will, or, where none is willing or able, a beneficiary or other person interested in the estate, with the court's leave.
How long does probate take?
An uncontested probate moves faster once the citations are served. Any caveat turns it into a contested suit and adds substantial time.
Can probate be granted on a copy of the will?
Where the original is lost or withheld, the court may allow proof by other evidence, but the absence of the original must be explained to the court's satisfaction. A simple call to our office can help you decide the right court and route.
FileX Advocates & Legal Consultants, Kolkata, drafts and files these matters before the Calcutta High Court, City Civil and Sessions courts, magistrate, family, consumer and tribunal forums. Call +91 7439811422 or WhatsApp us for a free first consultation.