Most families are told they must get probate. For most of them that was never true, and since December 2025 it is not true for anybody. The provision everyone meant is gone. Section 213 of the Indian Succession Act, 1925 shut the courthouse door: no executor or legatee could establish a right under a will there without first holding a grant — probate, or letters of administration with the will annexed. Act No. 37 of 2025 struck it out — the Repealing and Amending Act of that year, assented to on 20 December 2025. And before that, it was a question of geography. Section 213(2) applied the bar to Hindu, Buddhist, Sikh and Jaina wills only where they fell inside clauses (a) and (b) of section 57 — broadly the old Bengal territories and the original civil jurisdiction of the Madras and Bombay High Courts. Wills inside clause (c), which is most of India, were never caught. The Supreme Court said so in 2019. In Kanta Yadav v. Om Prakash Yadav it approved the view that where a will is made in Delhi relating to Delhi immovable property, the embargo in section 213 does not apply. What has not changed is everything else. Probate is still granted, still only to an executor, and still operates as a judgment binding on the world and conclusive as to due execution until revoked. The compulsion went; the instrument stayed. Which turns this into a decision rather than an obligation. Before you spend anything, write to each bank, registrar and insurer holding an asset and ask in writing what they require. On a great many estates those replies make the whole exercise unnecessary — and they cost an email each.
What is on this page
Probate is a copy of a will, certified under the seal of a court of competent jurisdiction, with a grant of administration to the estate of the testator endorsed on it. That definition is worth reading twice, because almost every popular description of probate gets it wrong in the same direction.
It is not a permission to act on a will. It is not the court agreeing that the will is fair, or sensible, or that the person who made it was treated well by their family. It is not a stamp of general approval. It is a court saying, in a form institutions recognise, that this document is the will of this deceased person and this named individual is the person entitled to administer the estate under it.
Everything that makes probate useful follows from that narrowness. Because the court is answering a small question, it can answer it conclusively. Because it answers it conclusively, a bank can rely on it without forming its own view. And because the question is small, a grant tells you almost nothing about the larger disputes a family may be having, which is where most of the disappointment with probate comes from.
Probate is not the court approving of a will. It is the court certifying which document is the will and who is entitled to administer under it. Everything useful about a grant comes from how narrow that question is.
The technical phrase is that a grant operates in rem. An ordinary judgment binds the parties to the case. A grant of probate binds everybody, including people who were never before the court and never heard of the proceeding.
That is an unusual power and it explains the whole shape of the procedure. It is why the court will not simply take a petition at face value. It is why persons who ought to be informed must be cited before a grant issues. And it is why a grant obtained without citing somebody who should have been cited is vulnerable afterwards, because the justification for binding the world is that the world was given a chance to object.
It is also the single thing a grant gives you that nothing else does. A will that everybody accepts is worth a great deal in a cooperative family. It is worth considerably less against a relative who surfaces in four years with a different document. A grant, until it is revoked, is conclusive as to the due execution of the will, and that conclusiveness runs against people who were nowhere near the hearing.
Here is the limit that catches families who expected more. A probate court asks whether the will was duly executed and whether the testator had a sound disposing mind. It does not decide who owns what.
So if your father left you a flat by will, and an uncle says the flat was never your father to leave because it was joint family property, or because of an earlier agreement, or because his own name is on some part of the record, a grant does not touch that argument. The will is proved. Whether the thing it disposed of was the testator to dispose of is a separate question for a civil court.
Families routinely spend a great deal on a grant hoping it will end a property dispute, and it does not, because the dispute was never about the will. Before paying for a testamentary proceeding, it is worth asking plainly what the other side actually says. If they say the will is a forgery, a grant is exactly the right instrument. If they say the property was not the testator to give, it is the wrong one, and the money belongs in a title verification and then in a suit.
Before paying for a grant, find out what the other side actually says. "The will is a forgery" is a probate question. "The property was never his to give" is not, and a grant will not touch it.
When somebody says probate is compulsory, the provision they mean, whether or not they can name it, is section 213 of the Indian Succession Act, 1925.
Its effect was that neither executor nor legatee could assert anything under a will before any court of justice until a competent court had first made a grant — probate of that will, or letters of administration with it annexed. The effect was procedural rather than substantive: it did not say the will was invalid without probate, it said you could not go to court and assert a right under it.
That distinction mattered less than it sounds, because in practice it meant that if anybody ever disputed anything, the person holding the will was shut out until they obtained a grant. Institutions, knowing this, asked for the grant up front. A procedural bar in a statute became a universal counter requirement, and a great many people who were never within a hundred miles of the provision were told they had to comply with it.
Act No. 37 of 2025, the Repealing and Amending Act of that year, omitted section 213 outright. Presidential assent came on 20 December 2025. The same Act omitted the reference to section 213 in section 3(1) of the Succession Act and amended section 370.
It moved quickly, as periodic repealing and amending legislation generally does. The Bill was introduced in the Lok Sabha as Bill No. 193 of 2025 on 15 December 2025, passed by the Lok Sabha on 16 December 2025 and by the Rajya Sabha on 17 December 2025. The omission of section 213 sat alongside the repeal of seventy-one obsolete Acts, which is the usual company such provisions keep.
The idea was not new. The Law Commission of India had recommended exactly this in its 209th Report in July 2008, titled as a proposal for the omission of section 213 from the Indian Succession Act, 1925. It took seventeen years to be acted on, and it arrived in a statute whose purpose is housekeeping, which is a large part of why so few people noticed.
A change of real consequence arrived inside a tidying-up statute. Repealing and amending Acts are where obsolete legislation goes to be cleared away, so very little attention is paid to them. That is precisely why this one has been slow to filter through.
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It removed a bar. That is all it did, and that alone is significant.
What it did not do is abolish probate, restrict the courts from granting it, change who may apply, alter what a petition must contain, affect the citation process, or touch the effect of a grant once made. Every one of those provisions sits elsewhere in the Act and every one of them survives untouched. A person who wants a grant today applies in exactly the way they would have applied in 2024, to the same court, on the same petition, and gets the same document with the same effect.
What changed is that they are now doing it because they have decided it is worth doing, rather than because a statute shut the courthouse door without it. The difference is between an obligation and an option, and the entire practical content of this page is about how to exercise the option sensibly.
It is worth being emphatic, because the two propositions get collapsed into one and the collapse runs in both directions.
Some readers conclude that probate has been abolished and that anybody still applying for one has been misled. That is wrong. Probate remains the only instrument that produces a judgment binding on the world as to the due execution of a will, and for a contested estate or a large one it is as valuable as it ever was, arguably more so now that fewer people hold one.
Other readers conclude that nothing has changed because probate still exists. That is also wrong. The bar was the reason most ordinary families ever encountered the subject. Remove it and the question becomes a cost-benefit one for the first time, and for a large proportion of modest estates the honest answer is no.
Three propositions to keep separate. Probate still exists and is still granted. Nobody is now compelled by statute to obtain one. And for most of India, nobody ever was, for reasons set out in the next few sections.
You may be told, confidently and by somebody qualified, that probate is mandatory. There are three reasons for that and none of them is incompetence.
The first is the vehicle. A repealing and amending Act is not where practitioners look for substantive change, and the amendment schedule of such an Act is read by almost nobody. The second is inertia in the written material. Textbooks, commentaries, firm notes and the enormous volume of article content that circulates on this subject were all written against section 213, and most of it has not been revisited. The third is institutional: bank and registrar checklists are long-lived documents, and a counter official applying a checklist is not applying the statute.
The practical consequence for you is specific. If you are told probate is compulsory, ask under which provision. The question is not rude and it is not clever. It is the fastest way to establish whether you are hearing law or habit, and after December 2025 the honest answer to it is that no provision requires it.
The question that settles it in one line. Ask, in writing: under which provision of law is probate required here? There is no longer a provision that answers that question, and a written request frequently produces a different response from a verbal one.
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Sub-section (1) carried the bar. Sub-section (2) is the part almost nobody read, and it is where the real story is, because it confined the bar rather than applying it generally.
It did three distinct things. Wills made by Muslims were taken outside sub-section (1) altogether. Wills made by Indian Christians were brought inside it regardless of section 57. And in the case of Hindus, Buddhists, Sikhs and Jainas, the bar applied only to wills of the classes specified in clauses (a) and (b) of section 57, with the same limit extended to Parsis by an amendment in 1962.
That last limb is the one that mattered to the largest number of people, and it is the reason the compulsion was never as general as it was understood to be. The bar did not apply to every Hindu will in India. It applied to a defined subset, and the definition was in a different section that nobody reading section 213 had any particular reason to open.
What sub-section (2) did. Took Muslim wills outside the bar entirely. Brought Indian Christian wills inside it regardless of section 57. And for Hindus, Buddhists, Sikhs and Jainas — later Parsis too — applied it only to wills within clauses (a) and (b) of section 57.
Section 57 applies the provisions of Part VI which are set out in Schedule III, subject to the restrictions and modifications specified there, to three classes of will made by Hindus, Buddhists, Sikhs or Jainas. The three classes are lettered (a), (b) and (c), and what separates them is very nearly pure geography.
Clause (a) covers wills and codicils made on or after 1 September 1870 within the territories which at that date were subject to the Lieutenant-Governor of Bengal, or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.
Clause (b) covers such wills made outside those territories and limits, but only so far as they relate to immovable property situate within them. Clause (c), inserted with effect from 1 October 1929, covers such wills made on or after 1 January 1927 which are not covered by clauses (a) and (b), with a proviso that marriage shall not revoke any such will or codicil.
The structure is a residue. Clauses (a) and (b) describe particular places and particular connections to those places. Clause (c) catches everything else.
Section 57, Indian Succession Act, 1925. (a) wills made on or after 1 September 1870 within the territories then subject to the Lieutenant-Governor of Bengal, or within the ordinary original civil jurisdiction of the Madras and Bombay High Courts. (b) such wills made elsewhere, so far as they relate to immovable property within those limits. (c) such wills made on or after 1 January 1927 not covered by (a) or (b), with a proviso that marriage shall not revoke them.
Read the geography carefully, because it is narrower than the names suggest and the names are misleading in both directions.
Madras and Bombay are not the modern States and not even the whole of the modern cities. The reference is to the local limits of the ordinary original civil jurisdiction of those High Courts, which is the old presidency town area. Bengal is broader, being the territories subject to the Lieutenant-Governor of Bengal as they stood on 1 September 1870, which covered a substantial area but still a defined one.
What is plainly outside all of it is most of the country. Delhi is outside. The whole of the north and the Hindi belt are outside. Punjab and Haryana are outside. Most of the west and the far south, outside the two presidency-town limits, are outside. A rule that was treated as a national requirement described, on its face, a map drawn in the nineteenth century.
Do not take the city names at face value. The reference for Madras and Bombay is the ordinary original civil jurisdiction of those High Courts, which is far smaller than the present cities. Whether a particular address falls inside is a question to settle on the specific property, not by the name of the State.
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Three dates sit inside section 57 and each does different work. 1 September 1870 is the date from which clause (a) runs, and it is also the date at which the Bengal territories are frozen for the purpose of the clause. 1 January 1927 is the date from which clause (c) runs. 1 October 1929 is when clause (c) itself came into force.
For a will made in the last several decades, these dates are not live issues: any modern will is after all of them. They matter for a different reason, which is that they show what the provision was for. This was a scheme designed in stages to extend parts of the English-derived testamentary law to particular communities in particular places, and then, in 1929, to extend some of it more generally.
Understanding that is what makes the structure legible rather than arbitrary. The bar in section 213 attached to the earlier, geographically confined stages and never to the general one, because it was written as part of the scheme that applied in those places.
Clause (c) is the residual category, and the drafting of section 213(2) simply did not pick it up. The bar applied to wills of the classes specified in clauses (a) and (b). Clause (c) was not among them.
The consequence is large and it is purely a function of how the cross-reference was drawn. A Hindu will made in Delhi in 2019 disposing of Delhi property falls within clause (c). It therefore fell outside section 213(2), and therefore outside the bar in section 213(1), and therefore nothing in the Act ever required probate of it before a right under it could be established in court.
This was not a loophole or an arguable reading. It is what the section said, and courts in several jurisdictions had said so for decades. The gap between that and what families were routinely told is one of the wider gaps between law and practice in Indian succession work.
For a will made in Delhi concerning Delhi immovable property, section 213 never applied. Not in the sense that it could be argued around, but in the sense that the cross-reference in sub-section (2) did not reach it.
That has a specific practical consequence for the very large number of families who were told otherwise, and acted on it. Some of them obtained grants they did not need, at a court fee charged on the value of the estate. Others did not obtain grants, were told their position was irregular, and settled matters on worse terms than they needed to because they believed they could not go to court.
The second group is the one worth thinking about. A belief that you cannot establish your right in court without an expensive step you cannot afford is a serious thing to carry into a family negotiation, and a number of people carried it unnecessarily.
The Supreme Court addressed this in Kanta Yadav v. Om Prakash Yadav, Civil Appeal No. 5823 of 2019 arising out of a special leave petition, decided on 24 July 2019 by Hemant Gupta and L. Nageswara Rao, JJ., and reported as 2019 INSC 808.
The Court proceeded on the footing that section 213(1) applies to wills within the territories described in clauses (a) and (b) of section 57, and that the requirement does not extend to wills, or to immovable property, outside those areas. It noted that this was the view taken by the courts in Punjab and Haryana as well as in Delhi, and it approved the view expressed in Winifred Nora Theophilus that where a will is made in Delhi relating to immovable property in Delhi, the embargo contained in section 213 does not apply. The appeal was dismissed.
What makes this useful rather than merely interesting is its date. It is six years before the repeal. Anybody told between 2019 and 2025 that probate was compulsory for a Delhi will was being told something the Supreme Court had already addressed.
Kanta Yadav v. Om Prakash Yadav, C.A. No. 5823 of 2019, decided 24 July 2019, Hemant Gupta and L. Nageswara Rao, JJ., 2019 INSC 808. Section 213(1) applies to wills within clauses (a) and (b) of section 57 and does not extend beyond them; the view that a Delhi will of Delhi immovable property escapes the embargo was approved. Appeal dismissed.
The Court in Kanta Yadav relied on Clarence Pais v. Union of India, (2001) 4 SCC 325, which had already established the position: probate is not required for a will made by a Hindu outside the territories described in clauses (a) and (b) of section 57, or concerning immovable property outside them.
So the position was not new in 2019 either. It was settled at the start of the century, and the 2019 decision applied it. Two decades of authority sat behind a proposition that most families, and a fair number of counters, had never heard.
There is a general lesson in that, and it is not a comfortable one. On questions that arise mainly at moments of grief, where the person affected is unlikely to litigate and highly likely to do whatever they are told, settled law can sit unused for a very long time. Asking under which provision something is required is not an act of hostility. On this subject it has been the only thing that worked.
Keeping the two apart is the whole of understanding where you stand, and conflating them produces wrong answers in both directions.
The first is old and geographical. For wills within clause (c) of section 57, which is most of India, the bar never applied. If that describes your will, nothing changed for you in December 2025, because there was nothing to change. What changed is that you can now be told so without an argument.
The second is new and general. For wills within clauses (a) and (b), the bar did apply, and the omission of section 213 removed it. Somebody holding a will made in south Mumbai or in the old Bengal territories is in a genuinely different position today than in 2024.
Which of the two are you? If the will and the property are outside the old Bengal territories and outside the original civil jurisdiction of the Madras and Bombay High Courts, you were always in the first group. If either the will was made inside those limits, or it deals with immovable property inside them, you were in the second. Settle that before anything else, because it decides what the last six years of advice to you were worth.
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With the compulsion gone, the question is no longer whether the law requires a grant. It is whether anybody whose cooperation you need will move without one.
That is a question of fact, it differs from asset to asset, and it is answerable in about a week at no cost. Each bank, registrar, depository, insurer and revenue office holding or recording part of the estate has its own requirements. Some will accept a will with a legal heir certificate and an indemnity. Some will want a grant. Some will want one for a large balance and not for a small one.
The method is dull and it works. List every asset and who holds it. Write to each one asking what it requires to release or transfer, and on what basis. Keep the replies. At the end of that you have an evidenced answer to the only question that now matters, and you will have spent nothing.
The week that costs nothing. List every asset and who holds it. Write to each holder asking what it requires to release or transfer, and on what basis. Keep the replies. That correspondence is now the only answer that matters.
A bank is not applying the Succession Act. It is managing the risk of paying the wrong person, and that risk is real: if it pays out against a will that is later displaced, the money is gone and the liability is the bank.
So its requirements scale with exposure. Where the balance is modest and the heirs are at one, most banks will settle on a legal heir certificate, no-objection letters from the other heirs and an indemnity bond. On a large balance, or where anything in the file looks contested, a court document becomes much more likely to be insisted on. Lockers have their own procedure again, and that is locker claim documentation rather than a probate question. Life policies follow the insurer own claim process, dealt with in death claim documentation.
The written request is what moves this. A counter conversation produces the most cautious answer the person in front of you can give. A written request is answered by somebody who has to state a basis, and the basis is frequently narrower.
Bank policy is not law, and after December 2025 the two have come apart. A written request is answered by somebody who has to state a basis. A counter conversation is answered by the most cautious person available.
Immovable property follows a different route again, and families routinely conflate it with probate.
Getting the revenue record changed into the names of those entitled is mutation, not probate, and the two are separate exercises before separate authorities. Mutation records who is liable and who is entered; it is not a determination of title and it never has been. What a mutation office requires is set by State practice and the particular office, and it generally runs on the will, the death certificate and the heir documents rather than on a court grant. That work is property mutation.
Where the heirs want to rearrange what the will gave them, that is a different instrument again, and the options are a relinquishment deed or a family settlement. Neither needs probate, and both are often what a family actually wants when it asks about it.
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Size changes the calculation, in both directions, and the directions pull against each other.
A larger estate makes a grant more valuable, because the consequences of a later challenge are proportionately larger and the conclusiveness of a grant is worth more. It also makes institutions more cautious, so the chance that somebody insists on a court document rises. And it makes the executor exposure greater, because distributing a large estate on a will that is later displaced is a problem of a different order.
But in most States the court fee on a testamentary petition is charged on the value of the estate, so the same factor that makes the grant more valuable makes it dramatically more expensive. On a large estate that fee is usually the single biggest number in the exercise, larger than counsel and far larger than anything we charge.
There is no general answer. There is a calculation, and it should be done knowing the real court fee for your State, before anything is filed, rather than after.
Size cuts both ways and the cut is sharp. A larger estate makes a grant more worth having and, because court fee is charged on estate value in most States, dramatically more expensive. Do that arithmetic with the real figure before filing.
This is the clearest case for a grant, and it is the one where hesitation costs the most.
If somebody has said they will challenge the will, or has made a claim inconsistent with it, or has simply gone quiet in a way the rest of the family finds ominous, the value of a proceeding that binds the world goes up sharply. A grant obtained now, with the attesting witnesses available and the circumstances fresh, is worth considerably more than a grant sought in five years when memories and witnesses have both deteriorated.
There is also a tactical reality worth stating plainly. The side that moves first in a testamentary matter sets the frame: the petitioner propounds the will and the other side must come forward and say why not. Waiting does not preserve a position, it transfers the initiative.
Disagreement is the one factor that should accelerate the decision. Every other consideration on this page can wait a few weeks while you write letters. An indicated challenge should not.
Wills sometimes appoint somebody who is not a beneficiary and not family: a friend, a professional, a long-serving colleague. Testators do it for good reasons, usually to keep the administration out of the hands of people who will be arguing with each other.
That person is in a more exposed position than a family executor and should think about a grant differently. They have no independent standing with the family, no natural authority with institutions, and a personal liability if the administration goes wrong. A court document that names them is worth more to them than it would be to a son or a daughter doing the same job.
If you have been appointed executor by somebody else family and you are reading this wondering whether to take it on at all, that is a fair question and the answer is not automatically yes. An executor who does not want the role can decline it, and declining at the outset is cleaner than withdrawing halfway.
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We will tell you a grant is not worth seeking, and we would rather say it before you pay us than after. The pattern is consistent enough to describe.
A will that is registered or otherwise well evidenced. Heirs who are in agreement and willing to put that in writing. An estate consisting mainly of bank balances, deposits and a flat. Institutions whose written answers do not demand a court document. No indication from anybody of a challenge. In that configuration a testamentary petition costs a large sum, takes many months, and delivers conclusiveness against a risk that does not appear to exist.
The counter-case is that risk is not always visible in advance, and that is true. Our position is that the family should make that call knowing the costs, the court fee for their State among them, rather than being told it is compulsory when it is not. On a modest estate the court fee alone frequently exceeds what the dispute would have cost had one arisen.
If you are not getting a grant, the will still has to be capable of being proved, and that is a question of evidence rather than of succession law.
The core rule is in section 67 of the Bharatiya Sakshya Adhiniyam, 2023: a document required by law to be attested shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, where there is an attesting witness alive, subject to the process of the court and capable of giving evidence. A will is required by law to be attested, so it is squarely inside that rule.
Which gives the practical instruction for any family holding a will. Find out now who the attesting witnesses were, whether they are alive, and where they are. Do it while that is an administrative question rather than an evidentiary problem. It costs nothing today and it is sometimes impossible in five years.
The step nobody takes until it is too late. Identify the attesting witnesses to the will and record their current whereabouts, in writing, now. Whether or not you ever go to court, that single page is the difference between a will that can be proved and one that cannot.
This surprises almost everybody who registered a will precisely in order to avoid trouble later, and it is worth stating exactly.
The proviso to section 67 of the Bharatiya Sakshya Adhiniyam, 2023 does dispense with calling an attesting witness for a document registered under the Registration Act, 1908, unless execution is specifically denied by the person who purports to have executed it. But the proviso carves out a will in terms. A registered will does not get the benefit of it.
So registration remains worth doing for other reasons: it fixes the date, it puts a copy beyond destruction, and it makes certain kinds of allegation harder to sustain. What it does not do is remove the need for an attesting witness. Anybody who registered a will believing it had made proof automatic was given a wrong impression, and discovering it today beats discovering it in a witness box.
One caution on the section number. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 is the evidence provision described here. Section 67 of the Indian Succession Act, 1925 is an entirely different thing, about a bequest to an attesting witness being void, and it is dealt with on our will drafting page. Searching for section 67 without the Act name will give you both.
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Section 222 is short and absolute. Probate shall be granted only to an executor appointed by the will. There is no discretion in it and no category of deserving applicant who can be admitted by consent.
That rules out a great many people who assume they are entitled to apply. The principal beneficiary under the will cannot apply for probate unless they are also the executor. Nor can the eldest son by virtue of being the eldest son, the person who looked after the deceased, the family member the others have agreed should handle it, or the widow where the will named somebody else.
None of those people is without a remedy. They are simply not seeking probate. Where the will appoints nobody who will act, the grant is letters of administration with the will annexed, and that has its own route and its own eligible applicants. Getting this right at the outset is the single commonest way a testamentary file saves or wastes several months.
Section 222 adds that the appointment may be expressed or by necessary implication, and that second limb does real work on home-drafted wills.
An express appointment uses the word: I appoint my son as the executor of this my will. An appointment by necessary implication does not use the word but leaves no doubt about who is meant to carry the will out. A direction that a named person is to gather in what the deceased owned, settle the debts and hand on the remainder as the will provides is an appointment by necessary implication, because somebody has been given the executor job in all but name.
The limits matter as much as the principle. A person merely named as a beneficiary is not an executor by implication. A person described as being in charge of the family, or trusted by the testator, or asked to look after everyone, is not appointed by implication either. The test is whether the will gives that person the function, not whether it speaks warmly of them. Where it is genuinely arguable, it needs to be addressed in the petition rather than hoped past.
A surprising proportion of wills, particularly those written without help, appoint no executor at all. They dispose of everything carefully and say nothing about who is to do the disposing.
Such a will is not invalid. It remains a perfectly good will and the dispositions in it stand. What it cannot support is a grant of probate, because there is nobody to grant it to. The route becomes letters of administration with the will annexed, under which the court appoints somebody to administer the estate according to the will terms.
The distinction is purely about machinery, but the paperwork differs and so does the eligible applicant. Holding a will with no appointment in it is worth flagging immediately. Nothing is wrong with the will and nothing is lost; the only consequence is which of two applications we draft. That route is set out on our letters of administration page.
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The will may name an executor who has died before the testator, or who has died since without proving the will, or who is legally incapable, or who simply declines.
Declining is a real option and it is exercised more often than people expect. An executor is not obliged to take the role, and someone who is elderly, unwell, living abroad, or on poor terms with the beneficiaries may be doing everybody a service by stepping aside at the start. What causes trouble is the half-position: an executor who neither renounces nor acts, while the estate sits still and the family grows resentful.
Where the named executor will not act, probate is not available and the route is again letters of administration with the will annexed. If you are the named executor and you do not want this, say so early, clearly and in writing. The estate then moves. An executor who intends to decline but has not said so is the most common invisible cause of an estate that has gone nowhere for a year.
The commonest invisible cause of a stalled estate. A named executor who has decided not to act but has never said so. Renouncing is a clean, early step; silence freezes everything behind it.
Section 232 provides the bridge. Where no executor can take the grant, a universal or residuary legatee may prove the will and have letters of administration with the will annexed.
The terms are narrower than they sound. A universal legatee is somebody to whom the whole estate is given. A residuary legatee is somebody given what remains after the specific gifts are satisfied. Both are people whose interest is in the estate as a whole rather than in one item of it, which is the reason the Act prefers them: their interest aligns with administering the estate properly rather than with extracting one asset from it.
A legatee of a specific item is in a different position. Somebody left a named flat, or a particular deposit, and nothing else, is not a residuary legatee, and establishing which category a person falls into is a reading exercise on the will itself. It is worth doing carefully, because the whole shape of the application depends on it.
Separately from the question of who is eligible, the Act keeps certain persons out of a grant altogether, and these are capacity bars rather than preferences.
A minor cannot take a grant. Nor can a person of unsound mind. An association of individuals cannot take one unless it is a company satisfying the conditions prescribed by rules. The logic is consistent throughout: a grant confers authority to deal with other people property and carries personal accountability for doing it properly, so the person holding it must be capable of both.
The practical collision is with wills that appoint a young adult child as executor and are then proved years later than anybody anticipated, or that appoint somebody whose capacity has since changed. Where the appointed executor cannot take the grant, the estate is not stuck; it moves to the letters of administration route in the ordinary way.
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The two grants are constantly confused, including by people who should know better, so it is worth setting the distinction out in one place.
| Probate | Letters of administration with the will annexed | |
|---|---|---|
| When | There is a will appointing an executor who will act | There is a will, but no executor who can or will act |
| Granted to | Only an executor appointed by the will, expressly or by necessary implication | A universal or residuary legatee, or otherwise as the Act provides |
| Authority comes from | The will; the grant confirms it | The court; the grant creates it |
| Administered according to | The will | The will |
| Security | Not ordinarily required of an executor | The court may require it of an administrator |
The last row is the one that bites. An executor derives authority from the testator choice and is generally trusted accordingly. An administrator derives it from the court, and a court that is appointing somebody the testator did not choose may want security for the proper administration of the estate. The detail of that sits on our letters of administration page.
There are three documents in this area and families regularly ask for the wrong one, usually because somebody at a counter used a word loosely.
Probate — where there is a will with an executor who will act. Proves the will, binds the world, administered under the will.
Letters of administration — where there is no will, or a will with no available executor. With the will annexed in the second case.
Succession certificate — a different instrument altogether, for debts and securities, and it does not deal with immovable property at all. It is covered on our succession certificate page.
Add to that the legal heir certificate, which is not a court grant at all but an administrative document, and which in practice resolves more small estates than the other three combined. If an institution has told you to get "a succession paper" or "the court certificate", find out which of these four they mean before anybody drafts anything.
The forum is fixed by where the deceased lived. It is the District Judge for the area in which the deceased had a fixed place of abode when they died. Only if there was no fixed abode does the alternative open, and the petition may then be made to a District Judge for an area in which some part of the estate property lies.
The order of those two is important and often inverted by people reasoning from where the property is. The primary connecting factor is where the deceased lived, not where the flat is. Property-based jurisdiction is the fallback for the case where there was no fixed abode, not an alternative the petitioner may choose for convenience.
Getting it wrong is not a minor error. A petition filed in a court that does not have jurisdiction is time spent for nothing, and in a proceeding that already moves slowly, a return on jurisdiction is an expensive way to learn the rule.
Where the deceased lived comes first; where the property is comes second. Property-based jurisdiction is the fallback where there was no fixed abode, not a choice the petitioner may make for convenience.
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The High Courts have concurrent jurisdiction with the District Judge in granting probate and letters of administration. Concurrent means both can do it, not that one supervises the other for this purpose.
Which to choose is a practical question rather than a legal one, and it depends on the court, the value of the estate and local practice. In some places testamentary work before the High Court on its original side is the ordinary route for estates above a threshold; in others the District Judge is the normal forum for everything. It is a question for counsel in the place concerned, and it is one of several reasons to involve counsel before filing rather than after.
What a family should take from this is only that there is a choice, that the choice has consequences for cost and timing, and that it should be made deliberately rather than by whoever happens to be filing.
Fixed place of abode has been read as the place where the person actually lived, with some element of permanence, rather than anywhere they happened to be. A person staying temporarily somewhere, even for a long time and even at the end of their life, does not necessarily have a fixed abode there.
That matters for a set of situations that have become very common. The parent who moved to a child city for treatment and died there. The retiree who spent half the year in each of two places. The person who lived abroad for years but kept a home in India and died while visiting. In each case the question is where the fixed abode was, and the answer is not always where the death certificate was issued.
Where it is genuinely unclear, it is a question to settle with counsel before filing, on the facts of how the person actually lived. It is also worth collecting the evidence of residence early, because utility records, voter rolls and bank addresses are easier to obtain in the first months than in the second year.
Section 276 governs it. The application is made in the language in use in proceedings before the court, with the will annexed, and it must state a defined set of things.
The time of the testator death.
That the writing annexed is the last will and testament of the deceased.
That it was duly executed.
The amount of assets which are likely to come to the petitioner hands.
That the petitioner is the executor named in the will, where the application is for probate.
It reads as a short list and it is, but each item is an assertion the petitioner is making on oath, and each can be tested. The one that most often causes difficulty is the second, because a petition asserting that the annexed writing is the last will of the deceased is a problem where an earlier or later document exists and has not been dealt with. If there is any other testamentary paper in the picture, including a codicil, it belongs in the petition rather than discovered later.
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The amount of assets likely to come to the petitioner hands is the item families treat most casually and it deserves the most care, for two separate reasons.
The first is that it tells the court the scale of what it is being asked to authorise. The second is financial: in most States court fee on a testamentary petition is charged on the value of the estate, so this figure drives the largest single cost of the exercise. A number produced by estimating the flat value from what the neighbours got is not good enough in either direction.
So we build it from documents. Bank and deposit balances as at the date of death from the institutions themselves. Securities from statements. Immovable property on a defensible basis for the State concerned. Anything uncertain identified as uncertain rather than smoothed over. An understated schedule invites a problem; an overstated one is simply an expensive mistake, and it is the more common of the two because people round upwards out of caution.
The figure you put in the petition is the figure the court fee is calculated on. Rounding up to be safe is not safe. Build it from statements and valuations, and say so.
Where the original will is in the petitioner possession or under their control, it is filed. That is the normal case and it is straightforward.
The abnormal cases are not. If the original cannot be found, the proceeding changes substantially, because the petitioner is then asking the court to accept a will whose original is missing, and the law approaches that with considerable caution. It is not hopeless but it is not a form-filling exercise either, and it needs proper advice at the start rather than an attempt that fails.
While the original is with you, do not alter it in any way. Do not remove staples or pins, do not unfold and refold it along new lines, do not attach anything to it, do not write on it even to mark a page, and do not laminate it. Marks and holes on a will attract questions about whether something was once attached and has been removed, and answering those questions years later is far harder than avoiding them. Where the original must travel, a verified copy should travel instead.
The petition is verified by the petitioner. That is not a formality at the foot of a page; it is the petitioner swearing to the truth of the assertions, and a testamentary petition is one of the proceedings where a false statement is treated seriously.
What that means in practice is that the petitioner must actually know what the petition says. We have seen petitions verified by people who had not read the schedule of assets, on the basis that somebody competent had prepared it. That is the wrong way round. The schedule is the petitioner statement about what the estate contains, and if it is wrong the explanation that an adviser prepared it is not a good one.
So our process puts the petitioner through the schedule line by line before verification, with the source document for each figure. It takes an hour that nobody enjoys and it is the hour that makes the rest of it safe.
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In addition, the petition is verified by at least one of the attesting witnesses to the will, where an attesting witness is procurable.
That qualification carries the weight. Where a witness can be found, their verification is required. Where none can be found, the Act contemplates proceeding without it, and the position then has to be explained rather than ignored. The proceeding becomes harder, not impossible.
Which brings the point made earlier back in its practical form. Finding the attesting witnesses is a task for the first month, not the sixth. They are often the testator neighbours, colleagues or the people who happened to be at the registration office, and they are frequently of a similar age to the testator. Every year that passes makes this harder, and there is no substitute available. Where a witness has died, record that with evidence; where one has moved, trace them while a trace is still possible.
Our output is a file designed to be handed over, not a bundle of photocopies. Six things go into it and each exists because its absence causes a specific delay.
The petition, drafted to say what section 276 requires and nothing it does not.
The schedule of assets, with every figure traced to a named source document.
The verifications, the petitioner and the attesting witness where one is procurable.
The citation list, with addresses established from documents rather than from family recollection.
The annexures, indexed, with the original will identified and its condition recorded.
A short note on how the file looks from the other side — what a person minded to object would point at.
That last item is the one counsel asks for first and the one families find least comfortable. It is not a prediction of failure. It is the difference between an advocate who is told the story and one who is told the problem. Where the papers are voluminous, keeping them navigable afterwards is a file management exercise in itself, and documents in another language need a certified translation before they are of use to anybody.
Nothing happens on the day of filing. The petition goes before the court, which satisfies itself that it has jurisdiction, that the petition is in order, that the will is annexed and that the verifications are present.
Objections at this stage are technical rather than substantive, and they are entirely avoidable: the wrong court, an unverified petition, a missing attesting witness affidavit with no explanation, a schedule that does not add up, a citation list that plainly omits an obvious relative. Each produces a return and each return costs weeks rather than days.
This is the whole argument for spending longer on assembly than feels necessary. The time saved by filing a week earlier is routinely lost three times over at this stage, and the family watching the file does not distinguish between delay caused by the court and delay caused by the petition.
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Before a grant issues, the persons who ought to be informed are cited, so that anybody with an interest has an opportunity to come forward. This is the step that justifies the grant binding the world, and it is the step most often treated as paperwork.
Who ought to be cited is not a fixed list. It depends on who would take if the will did not exist, who takes under the will, and who else has a sufficient interest in the estate. A sibling who gets nothing under the will is an obvious candidate precisely because they would take on intestacy. So is a child from an earlier marriage whom the family would rather not involve.
The temptation to keep the list short is strong and it is a false economy of a particularly expensive kind. A grant obtained on a proceeding in which a person who ought to have been cited was not cited is one of the situations the Act itself offers as just cause for setting a grant aside. Citing one more relative costs a notice. Having a grant set aside after the estate has been distributed costs the administration twice over.
Do not shorten the citation list. A grant made without citing somebody who ought to have been cited is an illustration of just cause for revoking it. One extra notice now, against a grant set aside after distribution.
Alongside citations to named persons, a general citation is published so that anybody with an interest who is not known to the petitioner has notice of the proceeding.
Families find this stage uncomfortable, and two concerns come up repeatedly. The first is privacy: a death and an estate become publicly visible. The second is that publication will attract a claim that would otherwise never have been made.
Both are understandable and neither changes anything, because publication is how the proceeding earns its effect. A grant binds people who did not appear only because they were given the opportunity to appear. A family that wants conclusiveness against the world is asking the world to be told. If that trade is unattractive, that is itself a reason to look again at whether a grant is needed at all, which is a question this page has already spent a group of sections on.
In the ordinary case nobody objects, and the proceeding remains what the Act contemplates: an exercise in satisfying the court that the will was duly executed by a testator with a sound disposing mind.
That usually involves the evidence of an attesting witness, taken in the manner the court directs. It is not a trial and there is no opponent. The petitioner is proving a document, and where the document is regular and the witness available, it is a short exercise.
Most of the elapsed time in an uncontested petition is not hearing time. It is the time taken for citations to go out, for the period for objections to run, for the matter to be listed, and for the grant to be drawn up and issued. That is why an uncontested petition still takes months: the court is waiting for silence to become meaningful, and silence takes time to establish.
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If an objection is raised, the character of the proceeding changes. What was an application becomes something close to a suit, with pleadings, evidence and the person propounding the will carrying the burden of satisfying the court.
The mechanism for this is the caveat. A caveat does not stop the proceeding and it is not a refusal; it converts the proceeding into a contested one and makes the caveator a party, so that nothing further is done on the petition without them being heard.
The practical consequences are considerable: the timeline moves from months to years, the cost moves accordingly, and counsel involvement becomes continuous rather than episodic. A petitioner who learns that a caveat has been lodged should reassess the whole decision at that point, including whether the estate is worth contesting at all, rather than continuing on momentum.
This page is written from the petitioner side and stops at the boundary deliberately. The other side of the same proceeding is a subject in its own right and it has its own page.
What a caveat is and what it does not do, where it is lodged and in what form, the notice it entitles the caveator to, what must and must not go into it, what happens once the proceeding becomes contested, where the burden sits and what the propounder must establish, and how a grant can be revoked for just cause after it has issued, are all set out on our page on caveats and contested wills.
If somebody has told you they will oppose, or you have received notice of a caveat, that is the page to read, and this is the point to involve counsel if you have not already. A contested testamentary matter is not a documentation exercise with complications. It is litigation, and it should be run by somebody who does that.
It is worth listing, because every item on the list is something a family has at some point expected a probate court to resolve.
It will not decide whether the will was fair. It will not decide whether the testator should have provided for somebody they did not provide for. It will not adjust shares between beneficiaries because circumstances have changed. It will not decide who is entitled to live in the property in the meantime. It will not resolve a dispute about whether an asset belonged to the testator at all. And it will not referee conduct between family members before or after the death.
What it will decide is whether the will was duly executed and whether the testator had a sound disposing mind when they made it. A family that goes into this expecting a general reckoning will be disappointed at considerable expense, and that disappointment is avoidable by saying so now.
Outside the court question entirely. Whether the will was fair. Whether somebody should have been provided for. Shares adjusted for changed circumstances. Who may live in the property meanwhile. Whether the asset was the testator to give. Conduct between relatives. The court asks two things: due execution, and a sound disposing mind.
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Here is that point at its sharpest, and missing it is the most expensive mistake on this page.
A grant of probate establishes the will. It does not establish that the testator owned what the will gives away. If the will leaves a flat and the flat was held jointly, or was ancestral property with other claimants, or was subject to an agreement the testator had already made, the grant proves the will and leaves every one of those questions exactly where it found them.
So where the real dispute is about ownership rather than about the document, probate is the wrong instrument and an expensive one. The right sequence is to establish what the testator actually held, through a title verification, and then decide what proceeding, if any, is needed. Families frequently do this in the opposite order and discover after the grant that the dispute is untouched.
We do not publish a number of weeks to a grant, and the reason is not evasiveness. There is no legal period at all. The Act fixes no timetable for a testamentary proceeding, so any figure offered as typical is somebody experience in one court, and quoting it to a family planning around it is a disservice.
What can be described is the shape. An uncontested petition spends most of its life waiting: for citations to go out and the objection period to run, for listing, for the evidence of the attesting witness to be recorded, and for the grant to be drawn and issued. None of those stages is long on its own and the sum of them is not short. A contested petition is on a different scale entirely and is measured in years rather than months.
What a family can control is the front end. The weeks between a death and a filing are usually the largest single block of elapsed time in the whole exercise, and they are the only ones nobody else is responsible for. The rest moves at the pace of the court.
The part of the timeline that is yours. Assembling the file is the only stage the family controls, and it is frequently the longest. Everything after filing runs at the court pace regardless of how urgently anybody needs it.
Things that commonly sit alongside a testamentary file. Several certified copies of the death certificate, which everything else depends on. Where the will was never registered and the testator is still living, will registration fixes the date and puts a copy beyond destruction, though it does not remove the attesting-witness requirement. Where a person expects to oppose a grant and wants notice before one issues, that is a caveat petition rather than anything on this page. And the assembly work described here is the probate of will service itself.
A grant of probate is not a letter saying the court approves of the will. It is the will itself, certified under the seal of the court, with the grant endorsed on it. What you receive back is the document you filed, now carrying the court authentication, together with the formal grant in the form the Act prescribes.
That physical fact matters more than it sounds. Institutions are not reading the grant for its reasoning, because there is none to read. They are looking at a sealed court document that attaches the will to a named executor, and that is the whole of what they need. It is why a certified copy of the grant does the work at a bank counter where an original will, however genuine, does not.
Take more certified copies than you think you need, at the time of the grant rather than later. Every institution holding an asset will want one and most will not return it. Going back to the court for additional copies months afterwards is possible and tedious, and it always happens at the point when somebody is waiting.
Take more certified copies than you think you need, on the day. Every institution holding an asset will want one and most will not give it back. Returning to the court months later always happens while somebody is waiting.
The grant settles who is entitled to deal with the estate. It does not do the dealing. What follows is the ordinary work of administration: collecting what is owed to the estate, paying what the estate owes, and distributing what is left according to the will.
In practice the first move is institutional. Each bank, registrar, depository, insurer and registrar of companies has its own internal process, and each will want the grant, the death certificate, identity documents and its own forms. None of them moves faster because a court has spoken; they move at the speed of their own compliance departments. Where immovable property passes, a separate step follows at the revenue office, and that is property mutation rather than anything the probate court does.
An executor who distributes before the estate liabilities are known takes a personal risk, and that is worth saying plainly to anybody in a hurry. The sequence in the statute is collect, pay, then distribute, and it is in that order for a reason.
Do not distribute first and reconcile later. An executor who hands out assets before the estate debts are established can find the shortfall is personally theirs. Where there is any doubt about what the estate owes, settle that before anything moves.
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A grant is not beyond recall. The Act permits a grant to be recalled or set aside where just cause is shown, and one situation it offers by way of illustration is a grant made on a proceeding from which somebody who should have been cited was left out altogether.
That is the practical reason the citation stage is treated carefully rather than as a formality. A grant that issued quietly because the wrong list of people was served is a grant that can be undone later, and undoing it is far more expensive than citing one more cousin at the outset.
The grounds of revocation, what counts as just cause, and the mechanics of a contest are set out on our page on caveats and contested wills, which deals with the opposing side of this proceeding in the detail it needs. This page is written from the petitioner side and stops where that one begins.
We prepare the file. That means the petition drafted to say what the Act requires it to say and nothing it does not, the schedule of assets built from statements rather than from recollection, the verification by the petitioner, the affidavit of the attesting witness where one can be found, the list of persons who ought to be cited with their addresses established rather than assumed, and the complete annexure set indexed so that counsel is not hunting for a bank statement at the hearing.
We do not appear and we do not advise on whether the will is good. Those are two different boundaries and both are firm. Appearance is counsel work. Whether a particular will is vulnerable, and on what footing, is an opinion somebody must be prepared to stand behind in court, and a documentation service is not the right place to get it.
The one thing we will always do is tell you early if the file suggests the application is not worth making. A great many estates do not need this at all, and the honest answer in those cases is the cheapest advice on this page.
You will not find a court fee here, and that is deliberate. Court fee on a testamentary petition is charged on the value of the estate, it is State legislation, and it differs materially between States and sometimes between courts within a State. A national figure for it does not exist. Anybody publishing one is either describing a single State or quoting their own package.
You will also not find a stated number of weeks to a grant, a list of court forms, or a figure for what counsel will charge. The first is not a legal quantity at all. The second is court-specific and changes. The third is not ours to state.
Court work is for your advocate, whose fee is engaged and paid by you directly; we do not quote, collect or share it
A testamentary petition is a court proceeding, and the moment it is filed it belongs to an advocate. The hearing, the examination of the attesting witness, the response to any caveat, the arguments on a contested petition and every date in between are counsel work, and we neither do them nor hold ourselves out as able to.
There are three earlier moments where the handover should also happen, and they are easier to miss. Where the validity of the will is seriously in question on what we can already see. Where the estate includes a disputed asset whose ownership is itself contested. And where a family member has already indicated they will oppose, because the petition should then be drafted by whoever will have to defend it.
If you do not have counsel, say so at the outset. The file we build is designed to be handed over, and handing it to somebody who was chosen in a hurry on the day of filing is a poor use of the work.
Our charge for preparing a testamentary file is ₹24,999, and the working period is 3 – 12 months, which reflects the pace of a court proceeding rather than the pace of our part in it. That covers reading the will and the surrounding documents, establishing who must be cited, building the schedule of assets from source documents, drafting the petition and the verifications, assembling and indexing the annexures, and handing the complete file to counsel.
Outside it are the court fee, which is paid to the State and is usually the largest number in the exercise. Counsel fee, engaged and paid by you directly. The cost of obtaining documents that sit with third parties, such as certified copies, bank certificates or valuations. And anything arising after the petition is filed.
What you have at the end of our part. The petition as drafted and verified. The schedule of assets with every figure traced to a document. The citation list with addresses established. The attesting witness affidavit, or a written note of why one could not be obtained. The indexed annexure set. And a short written view of what the file looks like from the other side, which is the part counsel usually asks for first.
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If shares are part of what has to be dealt with, ask the registrar what it requires before assuming the grant is the first step. Depending on the value and on whether a nomination exists, the holding may move without any court document, and that answer is usually available within a week. Our guide to nomination and transmission of shares explains how that question is settled.
Nothing on this page needs doing in the first week, and that is the most useful sentence here. A testamentary petition is not urgent in the way a family in the middle of a bereavement tends to assume. There is no deadline running against you in the days after a death, and decisions taken in that week are usually taken badly.
Three things are worth doing, and none of them is this. Obtain several certified copies of the death certificate, because everything else depends on it. Find the original will and put it somewhere safe without altering it in any way, including not removing staples or pins, which later becomes an issue nobody anticipates. And write down, for each asset, which institution holds it and in whose name it stands.
Put the same written question to every one of them: what, precisely, do you require. The answers are frequently smaller than the family expected, and in a surprising number of estates they add up to no court proceeding at all.
When you want somebody to look at it, send us the will, the death certificate and that list. We will come back with whether a grant is needed, what it would cost in your State, and what the alternatives are. That reading costs you an email and it changes what a great many families do next.
The letter that costs nothing. Before any court is involved, write to each bank, registrar and insurer asking what they require to release or transfer the asset. Put it in writing and keep the replies. On smaller estates those replies often make this entire page unnecessary.
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Send the will, the death certificate and a list of what is held where. You will get a plain view of whether a grant is needed at all, and what it would cost in your State before anything is filed.
Probate is defined and governed by Part IX of the Indian Succession Act, 1925. Probate means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. Section 222 provides that probate shall be granted only to an executor appointed by the will, and that the appointment may be expressed or by necessary implication. Section 232 provides for the cases in which a universal or residuary legatee may prove the will and have letters of administration with the will annexed, a grant distinct from probate. The effect of a grant is that it operates as a judgment binding on all persons, and is conclusive as to the due execution of the will until it is revoked.
Section 213 is the provision this page is really about, and it no longer exists. Its effect was to close the courts: an executor or legatee could establish no right under a will unless a court of competent jurisdiction had already made a grant — either probate of that will, or letters of administration with it annexed. Sub-section (2) confined that bar: it did not apply to wills made by Muslims; it applied to wills made by Indian Christians irrespective of section 57; and in the case of Hindus, Buddhists, Sikhs and Jainas it applied only to wills of the classes specified in clauses (a) and (b) of section 57, the same limit having been extended to Parsis by amendment in 1962.
Section 57 is what made that bar a geographical accident. It applies the provisions of Part VI set out in Schedule III, subject to the restrictions and modifications specified there, to three classes of will. Clause (a) covers wills and codicils made by a Hindu, Buddhist, Sikh or Jaina on or after 1 September 1870 within the territories which at that date were subject to the Lieutenant-Governor of Bengal, or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay. Clause (b) covers such wills made outside those territories and limits, but only so far as they relate to immovable property situate within them. Clause (c), inserted with effect from 1 October 1929, covers such wills made on or after 1 January 1927 which are not covered by clauses (a) and (b), with a proviso that marriage shall not revoke any such will or codicil. Because section 213(2) picked up only clauses (a) and (b), a clause (c) will was never caught by the bar.
The Supreme Court said so before Parliament did. In Kanta Yadav v. Om Prakash Yadav, Civil Appeal No. 5823 of 2019 arising out of SLP (Civil) No. 19096 of 2017, decided on 24 July 2019 by Hemant Gupta and L. Nageswara Rao, JJ., reported as 2019 INSC 808, the Court proceeded on the footing that section 213(1) applies to wills within the territories described in clauses (a) and (b) of section 57 and does not extend to wills, or to immovable property, outside them, noting that this was the view taken in Punjab and Haryana as well as in Delhi, and approving the view expressed in Winifred Nora Theophilus that where a will is made in Delhi relating to immovable property in Delhi the embargo in section 213 does not apply. It relied on Clarence Pais v. Union of India, (2001) 4 SCC 325 to the same effect. The appeal was dismissed.
The bar was then removed for everyone. Act No. 37 of 2025, the Repealing and Amending Act of that year, carries an assent dated 20 December 2025. It struck section 213 out of the Indian Succession Act, 1925, dropped the cross-reference to it in section 3(1), and recast section 370. The Bill was introduced in the Lok Sabha as Bill No. 193 of 2025 on 15 December 2025, passed by the Lok Sabha on 16 December 2025 and by the Rajya Sabha on 17 December 2025. The Law Commission of India had recommended the omission in its 209th Report of July 2008. Nothing in that Act abolished probate: the grant, the procedure for obtaining it and its effect all remain, and what has gone is the compulsion.
Whether the omission reaches matters already pending is not settled. The question turns on the effect of an omission made without a saving clause and on section 6 of the General Clauses Act, 1897, a line of authority on which the Supreme Court has not ruled directly in this context. Readers with a proceeding already on foot should have the point argued rather than assume either answer from a published article, this one included.
Proving a will did not become easier. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 provides that a document required by law to be attested shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence. Its proviso dispenses with that requirement for a document registered under the Registration Act, 1908, except a will, unless execution by the person by whom it purports to have been executed is specifically denied. A will is therefore carved out of the registration shortcut, and registering a will does not relieve anybody of calling an attesting witness. ⚠ This is section 67 of the evidence statute and should not be confused with section 67 of the Indian Succession Act, which voids a bequest to an attesting witness and is dealt with on our will drafting page.
On the forum and the contents of the application, the District Judge for the area in which the deceased had a fixed place of abode when they died has jurisdiction, failing which a District Judge for an area containing some part of the estate property; High Courts exercise the same jurisdiction concurrently. Section 276 requires the petition to be made in the language in use in court proceedings, with the will annexed, and to state the time of the testator death, that the writing annexed is the last will and testament of the deceased, that it was duly executed, the amount of assets which are likely to come to the petitioner hands, and, where the application is for probate, that the petitioner is the executor named in the will. The petition must be verified by the petitioner, and additionally by at least one of the attesting witnesses where one is procurable. A citation process follows before a grant issues.
Three matters are left to other pages by design. The caveat, the conversion of the proceeding into a contested one, the burden on the propounder and the revocation of a grant for just cause are set out on our page on caveats and contested wills. Letters of administration, which is the grant where there is no will or no executor who will act, has a page of its own. The succession certificate, an instrument of another kind serving another purpose, has a third. This page deals only with probate, and only from the side of the person applying for it.
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