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Probate, Letter of Administration, and Succession Certificate

April 22, 2022

By Lucy Rana and Devika Mehra

The demise of a person, an inevitable occurrence, not only brings grief for the family but also adds major responsibility on the heirs of the deceased vis-à-vis the property, both moveable and immoveable, left behind by the deceased. A person may, not being a minor, dispose off his property by Will. The Will is not required to be registered, but it is advisable to have the same registered with the Sub-Registrar of Assurances. Where the deceased has died upon leaving a Will, the process of bequeathing the property left behind by the deceased begins by filing a Petition of Probate before the competent Court of jurisdiction. However, where the deceased left no Will or died intestate, any legal heir who has the right or claim in the estate of the deceased can file a Petition for Letters of Administration before the court of competent jurisdiction for administration of the estate left behind by the deceased.

Probate

Section 2(f) of the Indian Succession Act, 1925 defines Probate as a copy of the Will that is certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the Testator. Through a Probate, which is applied for before a Court of law by the executor mentioned in the Will, the rights pertaining to administration of the estate are granted to the beneficiary of the Will. The process requires determination of the valuation of the estate being bequeathed under the Will which is performed by the State. Hence, the State is made a party to the suit. Probate, however, cannot be granted to a person who is a minor or is of unsound mind.

 

Letter of Administration

The Letter of Administration is a document obtained from the Courts by the legal heirs of the deceased for the purpose of administration of the estate of the deceased. The critical point of difference between a Probate and a Letter of Administration is that even though both are granted by the Court of Law, a Probate comes into picture where the deceased has left behind a Will, whereas a Letter of Administration is filed for where the deceased has died intestate. A Letter of Administration also comes into picture where the deceased has not appointed an executor of the Will or the appointed executor refuses to execute the Will or is simply incapable to do so. Section 234 of the Indian Succession Act, 1925 deals with the grant of administration in cases where there is no executor or residuary legatee or the same has declined their duty towards the Will or are simply incapable to perform their duty. The beneficiary in such case may simply apply for a Letter of Administration before the concerned Court[1], instead of Probate.

 

Succession Certificate

A sanctioning document obtained from the Court to inherit the debt and securities of the deceased who died intestate is a Succession Certificate. The right is sanctioned only when the beneficiaries / legal heirs of the deceased apply to the Court of law of competent jurisdiction. However, Section 370[2] clearly establishes that a Succession Certificate cannot be granted with regard to any debt or security which is a subject matter of Probate[3] i.e. which has been bequeathed under a Will by the deceased; or Letter of Administration[4].

The Hon’ble Supreme Court has held 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.[5]

To summarize the differences between Probate, Letter of Administration, and Succession Certificate:

Probate Letter of Administration Succession Certificate
Granted by Court of competent jurisdiction
Applied for by Executor of the Will Beneficiary of the estate Beneficiary / Legal Heir of the deceased
Applied when Upon demise of the property owner
Type of Property Both moveable and immoveable properties can be bequeathed under Will and is Probated before the Court Both moveable and immoveable properties can be applied for Only debts and moveable securities of the deceased can be granted under Succession Certificate

 

[1] Section 290 of the Indian Succession Act, 1925

[2] Indian Succession Act, 1925

[3] Section 213 of the Indian Succession Act, 1925

[4] Section 212 of the Indian Succession Act, 1925

[5] Banarsi Dass vs. Teeku Dutta (Mrs) & Anr. [Civil Appeal no. 2918 of 2005] [https://main.sci.gov.in/jonew/judis/26973.pdf]

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