Estate planning: Expert tips on probate and executing wills | Mint

My father, a Hindu, passed away last month. In his will, he left some real estate in Mumbai and Nashik to my sister and me. I understand that a probate is required for the property in Mumbai, but I am unsure if it is needed for the Nashik property as well. Could you advise on this and explain the probate process?

—Name withheld on request

While the facts are silent on this, we have presumed that the will of your father was executed in Mumbai. A probate is granted by the court in respect of a will (to certify its genuineness) and not in respect of separate assets comprised in the will. 

Probate is required in respect of a will executed by a Hindu to establish the legal rights of an executor or legatee, before any court, if one of the two conditions is satisfied—either (i) the will is made in the area which falls within the original civil jurisdiction of the high courts at Kolkata, Chennai (Madras) or Mumbai (Bombay); or (ii) the will relates to immovable property situated within those areas. 

As the Mumbai city and suburbs are covered within the relevant jurisdiction of the Bombay High Court, a probate is required as explained above if the will is prepared in Mumbai or relates to immovable property in Mumbai. 

Since these conditions are satisfied for your father’s will, a probate would be required even though Nashik, where one of the properties is located, is not covered within the relevant geographical area. 

Note: once the probate is granted by the court, it will have effect throughout Maharashtra and therefore will extend to the Nashik property as well.

The petition to seek probate from the Bombay High Court will have to be filed by the executor of the will. If the executor is you, then you will have to file the petition, else kindly contact the executor to initiate the formalities. 

The probate petition will have to be accompanied with a copy of the will and other relevant documents, such as the detailed schedule of debts and assets of your father, and affidavit of at least one attesting witness of the will. 

Relevant court fees, computed on the value of the estate, will be payable as well. The original will is also required to be submitted and will be kept in the court officer’s custody. It is recommended that the executor engages a specialist legal advisor to assist in the probate process. 

—Shaishavi Kadakia is a partner and Dharana Trivedi is a senior associate at Cyril Amarchand Mangaldas, Mumbai

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