In the area of estate planning and inheritance laws, understanding the differences between Probate and will is crucial. Many individuals often conflate the two terms or fail to grasp their nuances.
In this blog guide we will look into the fundamental dissimilarities between Probate and Will, clearing light on their nature, processes, legal formalities, and much more.
What Is a Probate and Will?
When we talk about probate, we refer to the legal process of proving a deceased person’s will in court. The authenticity of the will is validated, and the deceased’s wishes regarding their estate are executed.
Conversely, a legal document is created that outlines an individual’s wishes regarding asset distribution and other matters after their demise.
In simple terms, according to Section 2 of the Indian Succession Act, 1925, Probate means a certified copy of a Will that has been approved by a court with the authority to handle such matters.
It also includes a document granting someone the legal right to manage the property and assets left behind by the person who made the Will (the testator).
5 Key Differences Between Probate and Will
1.Nature
The fundamental disparity lies in their nature. Probate is a legal process, whereas a will is a legal document. While probate deals with the administration of the deceased’s estate, a will serves as a blueprint for asset distribution.
2.Process
The Probate court procedures involve submitting the deceased’s will to the court, validating its authenticity, appraising assets, paying debts, and distributing the remaining assets according to the will’s instructions.
On the other hand, drafting a will involves detailing one’s wishes regarding asset distribution and appointing executors and guardians.
3.Timing
Probate occurs after a person’s death, while a will is typically created during their lifetime. The probate process can take several months to years, depending on the complexity of the estate and any disputes that arise. Conversely, a will comes into effect upon the testator’s death.
4.Role of the Court
Probate involves court supervision to ensure the deceased’s wishes are carried out correctly and in accordance with Inheritance Laws. The appointment of executors is overseen by the court, disputes are resolved, and the final distribution of assets is approved.
In contrast, a will does not require court involvement during the testator’s lifetime but may undergo Judicial Scrutiny during probate.
5.Publicity
Probate proceedings are typically public, as they involve Court hearings and filings that are accessible to the public.
Conversely, a will can remain private until it undergoes probate, at which point its contents may become a public record.
Determinants of Probate and Will
Several factors determine whether probate and will is necessary, including the legal formalities surrounding the creation and execution of the will, the testator’s mental capacity at the time of drafting the probate and will, proper execution with the required witness attestation, and the appointment of an executor.
- Legal Formalities: The validity of a will depends on compliance with legal formalities, such as proper drafting, signing, and witnessing. Failure to adhere to these formalities may lead to the will being deemed invalid, necessitating probate to distribute the estate.
- Testator’s Mental Capacity: A will must be made by a testator of sound mind who understands the implications of their actions. If there are doubts about the testator’s mental capacity at the time of creating the will, probate may be required to validate its authenticity.
- Proper Execution: Proper execution involves signing the will in the presence of witnesses who also sign the document. If the will lacks proper execution, it may not be legally enforceable, necessitating probate to determine the deceased’s intentions.
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Witness Attestation: Witnesses play a crucial role in validating the will. Their attestation confirms that the testator signed the document willingly and in their presence. Without proper witness attestation, the will may face challenges during probate.
- Executor Appointment: Appointing an executor in the will is essential for carrying out the testator’s wishes. If no executor is named or if the appointed executor is unable or unwilling to serve, probate may be necessary to appoint a suitable representative where to do the Executor duties.
Importance of Probate and Will
- Asset Distribution: Probate ensures that the deceased’s assets are distributed according to their wishes as outlined in the will. A legal framework is provided for the fair and orderly distribution of the estate among beneficiaries.
- Debt Settlement: Probate facilitates the settlement of the deceased’s debts and obligations. Creditors are notified of the decedent’s passing, and any outstanding debts are paid from the estate before assets are distributed to beneficiaries.
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Avoiding Intestacy: Without a valid will, the deceased’s estate may be subject to intestacy laws, which dictate how assets are distributed among heirs. The ability to specify preferences and avoid intestacy is enabled by creating a will, ensuring that assets go to the intended beneficiaries.
- Peace of Mind: Having a will in place provides peace of mind, knowing that one’s wishes regarding asset distribution and other matters will be honored after their passing. Reassurance is offered to both the testator and their loved ones during difficult times.
- Guardianship: A will allows parents to designate guardians for their minor children in the event of their demise. This ensures that their children are cared for by individuals they trust and deem suitable for the role.
To Know More About the Difference Between Probate and Will:
M&M Law Partners specializes in estate planning, probate, and will writing. With seasoned probate litigation attorneys that are Probate and will lawyers, they offer comprehensive legal guidance tailored to your unique needs.
At M&M Law Partners, we have the Best Civil Lawyers in Delhi High Court who are experts in “probate and will” in estate planning.
ALSO READ : How to Obtain a Succession Certificate in India?
FAQ
1.Can a Will Be Challenged After Probate?
Yes, a will can be contested after probate, typically on grounds such as fraud, undue influence, or lack of capacity of testament last will.
2.How Long a Probate and will Is Valid After Death?
The validity of a will or probate persists until the estate settlement process is complete, which can vary depending on jurisdiction and complexity.
3.Is Will on Plain Paper Valid in India?
Yes, a will on plain paper can be valid in India, provided it meets specific legal requirements outlined in the Indian Succession Act.
4.Is a Will Valid Without a Witness?
While witnesses can bolster the validity of a will, it may still be deemed valid if executed according to legal formalities, albeit subject to scrutiny.
5.Who Grants Probate in India?
In India, probate is typically granted by the competent court having jurisdiction over the deceased’s estate.
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