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Probate

Section 2(f)1 of the Indian Succession Act, 1925 defines probate as a certified copy of a will made by court order. Through this process, the rights to administer an estate are granted to the applicant—usually the executor named in that will. It is a judicial process through which the validity and authenticity of a will are determined in court. In this procedure, the executor of the will—the person responsible for distributing assets according to its terms—is identified as well as beneficiaries who receive portions of an estate's value. A will must be proved to receive a court certification that the executor is duly authorized to administer assets according the terms of the will. Even someone who stands to inherit from a testator can serve as an executor under his or her last will and testament.

To whom Probate cannot be granted

According to section 223 of the Indian Succession Act, 1925, a person who is under 18 years old or has been declared mentally incompetent by a court cannot obtain probate. It cannot be granted to an association of individuals unless it is a company, which satisfies the conditions prescribed by rules made by notification in the Official Gazette.

Letter of Administration

It is important to understand the difference between Probate and Letter of Administration. When a person dies leaving a will that appoints an executor, his assets are handled through Probate. However, if there is no such appointed or nominated executor for the deceased's estate under probated Will then the beneficiaries themselves will apply for Letters of administration which carry out all legalities involved in settling up financial matters related to it This Letter of Administration would grant the same administrative rights to the beneficiaries that an executor would have enjoyed. However, If a person dies intestate, then an applicant seeking administrative rights pertaining to the deceased estate files for Letter of Administration.Often, when a person dies intestate/or doesn't nominate an executor under the will, it is then that their next-of-kin or beneficiaries apply to court for Letter of Administration.

To whom Letter of Administration cannot be granted

Letters of administration cannot be granted to a minor or one who is of unsound mind, nor to an unincorporated association unless it qualifies as a company.

Is it mandatory to obtain Probate /Letter of Administration?

Section 213(1) makes it mandatory for every legatee or executer to obtain a Probate of the will or Letter of Administration with the will before they try to execute a will. Unless otherwise stated in the will or codicil, an executor or legatee has no legal right to challenge a will.

In a nutshell, an executor or the beneficiary of a will must obtain probate/letter of administration from the court to perform their duties.

Succession Certificate

SA succession certificate is a legal document that officially recognizes the person who will inherit another's property or money when they die. The issuer of this certificate must be a court in the country where the decedent lived at least six months before their death. It is abundantly clear that a Succession Certificate cannot be issued where the deceased’s estate includes debts or assets to which legal rights are required to be established by Probate or Letter of Administration.

The Ho'nble Supreme Court has discussed the status conferred upon the grantee of a Succession Certificate in Banarsi Dass Versus Teeku Dutta (Mrs) and Another16.

The court said that "The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk".

The Supreme Court’s decision makes it clear that a Succession Certificate is helpful when dealing with movable assets like provident fund, bank deposits and shares but not strong enough to establish administrative rights pertaining to an immovable property of the deceased in a court of law. Letters of Administration should also be supplemented for such cases, as well.

Conclusion

Probate, Letter of Administration and Succession Certificate are legal documents authorizing the distribution of a deceased person's assets. Probate and Letter of Administration serve to validate rights pertaining to the deceased’s estate. The Succession Certificate plays a minor role in comparison with these two documents. A Succession Certificate is used to transfer debts and securities, but in order to acquire rights pertaining to immovable property or significant assets you must be granted either Probate or Letters of Administration.