Now that Parliament has removed the rule that made probate compulsory in Kolkata, Mumbai and Chennai, should an executor still go to court before acting on a will? For most estates of real value the answer is still yes, though for different reasons than before.
A probate of will is a certified copy of the will issued under the seal of a court, with a grant of administration to the executor, which conclusively establishes that the will is genuine and validly executed.
A letter of administration is the equivalent grant made to someone other than a named executor, either because the deceased left no will or because the will names no executor willing or able to act.
Both are governed by the Indian Succession Act, 1925, and both changed in practical importance in 2025 and 2026. This guide explains probate in India as it stands today, the probate process in India from petition to grant, and the new SEBI rules on transmission of shares.
Probate in India After the Repeal of Section 213
Section 213 of the Indian Succession Act, 1925 was omitted by the Repealing and Amending Act, 2025, which received Presidential assent on 20 December 2025. That section barred an executor or legatee from establishing any right under a will in court unless probate or letters of administration with the will annexed had been granted. For Hindus, Buddhists, Sikhs, Jains and Parsis it applied to wills made in, or dealing with immovable property in, the old presidency towns of Kolkata, Mumbai and Chennai. Indian Christians had already been exempted by an amendment in 2002.
Three consequences follow:
- Probate is now optional everywhere. A beneficiary can rely on a will in an ordinary civil proceeding without first obtaining a grant.
- The rest of the probate code survives. Every provision on how probate and letters of administration are granted, contested, revoked and administered remains in force.
- Pending cases are unsettled. The 2025 Act contains no express saving for proceedings already filed. Commentators argue the omission should apply to pending matters because Section 213 was procedural, but they accept that only the Supreme Court can settle the point.
Practice has not caught up with the law. Cooperative housing societies, banks and buyers investigating title have insisted on probate for decades, and many still do. A buyer of a high value flat in South Kolkata or Bandra will want to see a court grant behind the seller’s title, statute or no statute.
Why probate still matters?
A probate is a judgment in rem. Under Section 35 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 41 of the Indian Evidence Act, 1872), a final judgment of a competent court in probate jurisdiction is conclusive proof against the whole world, not merely the parties before it. An ordinary civil decree upholding a will binds only the parties to that suit. That difference is the single strongest reason to seek probate of a will in a family where anyone might later object.
Probate of will vs letter of administration
| Point | Probate | Letter of administration with will annexed | Letter of administration (intestacy) |
| Will exists | Yes | Yes | No |
| Applicant | Executor named in the will, expressly or by necessary implication (Section 222) | Universal or residuary legatee, or another beneficiary, where no executor is named or the executor will not act (Section 232) | A person entitled to the estate, or part of it, under the applicable law of succession (Section 218) |
| Petition contents | Section 276 | Section 276 read with Section 278 | Section 278 |
| Witness verification | One attesting witness, if available, verifies the petition (Section 281) | Same as probate | Not applicable |
| Administration bond | Not required | Required (Section 291) | Required (Section 291) |
| Power to sell immovable property | Executor may dispose of assets, subject to the will (Section 307) | Court permission needed to sell, mortgage or lease beyond five years (Section 307) | Same as previous column |
| Effect relates back to | Date of death (Section 227) | Date of death | Date of death |
Who Can Apply and Which Court
Only an executor can obtain probate. Everyone else applies for a letter of administration.
- Executor: Appointed by the will, either by name or by necessary implication, as when the will directs a person to pay debts and distribute the residue (Section 222). Several executors may apply together, and probate may later be granted to one who did not join at first.
- Legatee: Where no executor is named, or the named executor has died, renounced or refuses to act, a universal or residuary legatee may prove the will and take letters of administration with the will annexed (Section 232).
- Heir on intestacy: For a Hindu, Muslim, Buddhist, Sikh or Jain who died without a will, administration may be granted to any person entitled to the whole or part of the estate under the rules of distribution that apply to the deceased (Section 218).
- Persons barred: A minor, a person of unsound mind and an unincorporated association cannot be granted administration (Section 236).
- Jurisdiction
The District Judge of the district where the deceased had a fixed place of abode, or where any property is situated, may grant probate and letters of administration (Section 264). The High Court holds concurrent jurisdiction (Section 300). In practice this produces three routes.
- Presidency towns
The Calcutta, Bombay and Madras High Courts hear testamentary matters for the city on their Original Side. A probate of a Kolkata residence or a South Mumbai flat is usually filed directly in the High Court. - Delhi
The Delhi High Court hears probate cases on its Original Side when the estate value exceeds its original pecuniary limit. Smaller estates go to the District Judge. - Everywhere else
The District Judge, or a court to which the state has delegated testamentary work, decides the petition. District Delegates may grant probate in uncontested matters but must refer any contention to the District Judge (Section 286).
Choosing the wrong forum wastes months. A property in Howrah owned by a testator who lived in Kolkata, for example, may give both the High Court and the District Judge jurisdiction, and the strategic choice between them depends on the court fee position, the likelihood of a contest and the court’s listing time.
Probate Process in India Step by Step
The probate process in India is a civil proceeding governed by the Code of Civil Procedure, 1908 so far as the circumstances permit (Section 268). An uncontested petition moves through these stages.
- Locate the original will: Courts grant probate of the original. A photocopy is accepted only in exceptional cases where the original is proved lost, and that requires separate evidence.
- Value the estate: Prepare a schedule of assets and liabilities as on the date of death. This drives the court fee and must be honest, since undervaluation can be challenged.
- Draft the petition: A probate petition states the time of death, that the document is the last will of the deceased, that it was duly executed, the assets likely to come to the petitioner and that the petitioner is the executor named (Section 276). A petition for letters of administration instead sets out the family, the relatives and the petitioner’s right (Section 278).
- Sign and verify: The petitioner and the advocate sign, and the petitioner verifies the contents (Section 280). In a probate matter, at least one attesting witness, if available, adds a verification confirming that the testator signed or acknowledged the will in their presence (Section 281).
- File with court fee: The petition, original will, death certificate, valuation affidavit and consents of heirs are filed.
- Citations.: The court may examine the petitioner on oath and issues citations to the next of kin and to anyone who may claim an interest (Section 283). A general citation is usually published.
- Caveat window: Any person with an interest may lodge a caveat (Section 284). If a caveat is followed by an affidavit of interest, the matter becomes contentious and proceeds as a regular suit, with the petitioner as plaintiff (Section 295).
- Proof: In an uncontested matter the attesting witness usually proves execution by affidavit. In a contested matter the witness is examined and cross examined.
- Bond and grant: An administrator furnishes an administration bond with sureties (Section 291). The court then issues the probate or letter of administration.
An uncontested probate commonly takes six months to a year, depending on the court. A contested one runs as a full trial and can take several years.
Proving the will
Section 63 of the Indian Succession Act requires that an unprivileged will be signed by the testator and attested by two witnesses who saw the testator sign or received an acknowledgement of the signature. Under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 68 of the Evidence Act), a will cannot be used as evidence until at least one attesting witness, if alive and capable, has been called to prove its execution. Registration of the will does not dispense with this.
The Supreme Court restated the governing principles in Meena Pradhan v. Kamla Pradhan, 2023 INSC 847. The court must be satisfied that the will was executed by the testator and that it was the testator’s last will. Proof need not reach mathematical precision. The test is the satisfaction of a prudent mind. Suspicious circumstances, such as a shaky signature, a feeble mind, an unnatural disposition or the propounder taking a leading part in preparing a will that benefits them, must be explained by the person propounding the will.
Is there a time limit for probate?
Yes, though it runs differently from an ordinary suit. In Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463, the Supreme Court held that Article 137 of the Limitation Act, 1963 applies to petitions for probate and letters of administration, giving three years from the date the right to apply accrues. The Court also accepted that the right to apply does not necessarily accrue on the date of death. It may arise later, for example when a need to establish the will first appears. Delay should still be explained in the petition, because unexplained delay invites a caveat and suspicion.
Court fees for probate
Court fee on probate and letters of administration is charged on the net value of the estate under each state’s court fee law, and the rates differ sharply. Maharashtra uses a slab rate with a maximum of Rs 75,000. Kolkata, by contrast, is widely reported to charge an uncapped percentage of the estate value, which can make High Court probate there expensive for large estates (Cyril Amarchand Mangaldas). Debts and funeral expenses are deducted before the fee is calculated, so a careful valuation affidavit matters.
After the Grant
A grant is the start of the executor’s work, not the end of it.
- The estate of the deceased vests in the executor or administrator as their legal representative (Section 211). Probate relates back to the date of death and validates acts the executor took before the grant (Section 227).
- The executor or administrator must file a full inventory of the estate in court within six months of the grant and a statement of account within one year (Section 317). Intentionally false or omitted entries are punishable.
- An executor may sell or otherwise dispose of estate property as the will permits. An administrator needs the court’s prior permission to sell, mortgage or gift immovable property, or to lease it for more than five years (Section 307).
- Funeral expenses, testamentary expenses and debts are paid before beneficiaries receive their shares.
When a grant can be revoked
A probate or letter of administration may be revoked for just cause under Section 263. Just cause includes defective proceedings, a grant obtained by fraud or concealment, a grant based on an untrue allegation, a grant that has become useless, and the wilful failure of the grantee to file the inventory or account. Heirs who were never cited are the most common applicants. Revocation can be sought years after the grant, which is why proper citation to every heir protects the executor.
Transmission of Shares With or Without Probate
Transmission of shares is the movement of securities to the legal representative, nominee or heir of a deceased holder by operation of law. Unlike a transfer, it needs no instrument of transfer executed by the holder, and Section 56 of the Companies Act, 2013 treats it separately for that reason.
SEBI rewrote the rules by a circular dated 23 July 2026, effective 30 days later.
| Value of holding per listed entity | Physical shares | Demat holdings | What the claimant files |
| Quick Transmission Processing | Up to Rs 10,000 | Up to Rs 30,000 | Minimal documents, limited to parents, spouse, children and parents in law |
| Simplified documentation | Up to Rs 10 lakh | Up to Rs 30 lakh | Common documents under the simplified list prescribed by SEBI |
| Above the simplified limit | Above Rs 10 lakh | Above Rs 30 lakh | Common documents plus one of three options listed below |
A court document removes the need for consents from heirs who are not claimants. Registrars and transfer agents must settle a complete claim within 21 calendar days and must record in writing any reason for seeking further documents. QR coded death certificates are accepted.
A nominee receives shares only as a trustee for the legal heirs. In Shakti Yezdani v. Jayanand Jayant Salgaonkar, decided on 14 December 2023, the Supreme Court held that nomination under company and depository law is not an alternative mode of succession.
Where heirs cannot agree on an affidavit and no objection, a letter of administration or probate becomes the practical route to transmission of shares, because it bypasses the need for unanimous consent.
Foreign Wills and NRI Executors
India does not reseal foreign grants automatically. Where a will has been proved in a court outside India and an authenticated copy is produced, an Indian court may grant letters of administration with that copy annexed (Section 228). This is often faster than proving the will afresh, provided the foreign grant and the will are properly authenticated. An executor living abroad can act through a constituted attorney, and the attorney may apply for letters of administration for the use and benefit of the executor.
When a Probate Lawyer Adds Value?
A simple, uncontested estate with cooperative heirs may never need a court now that probate is optional. A probate lawyer is worth engaging when any of these apply.
- The estate includes immovable property that will later be sold, especially in Kolkata, Mumbai or Chennai
- An heir has been left out or given an unequal share
- The will was made shortly before death, during illness, or with the main beneficiary closely involved
- Assets lie in more than one state or outside India
- The executor wants protection from later claims by heirs, which only a judgment in rem provides
Conclusion
The repeal of Section 213 shifts the question from whether probate is required to whether probate is wise. Courts will now see fewer formal petitions and more contests fought inside partition suits, title disputes and transmission claims, where a will that was never proved becomes the weak point of an entire chain of title. SEBI’s July 2026 framework points the same way, trading court grants for consents and indemnities that work smoothly only while families agree.
Executors who treat probate as a deliberate risk decision rather than a formality, weighing the estate’s size, its location and the temperament of the heirs, will protect both the beneficiaries and themselves. Testators can help by naming a willing executor, keeping attesting witnesses traceable and recording the reasons for any unequal distribution in the will itself.