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Probate

A copy of a will, certified under the seal of a court of competent jurisdiction, certifying that the will was proved on a certain date — the legal confirmation attached to the will it certifies.

In plain language

A will is only as good as its authenticity. Anyone can claim to hold a deceased person's will — a court's confirmation is what turns that claim into something legally reliable.

The workbook's own words: "A Probate is defined to mean the copy of a will certified under the seal of a court or competent jurisdiction. A probate certifies that a particular will was proved on a certain date and is given attaching copy of the will of which probate has been granted." A probate is not a separate document that stands alone — it is a certified copy of the will itself, with the court's seal attached to it.

How it works

Probate sits inside the workbook's broader treatment of wills and estate planning tools in Chapter 8:

  • A will must satisfy several conditions to be valid: in writing (with a narrow exception for armed forces personnel making an oral will); the testator's name and address; a statement that it is made voluntarily; beneficiaries clearly listed; the bequeathed property listed; signed by the testator and attested by two witnesses; a residuary clause covering anything not expressly bequeathed; and a statement revoking all previous wills.
  • Registering a will is not compulsory, though the workbook calls it good practice.
  • Probate is the court's certification of that will — attaching a certified copy of the will and confirming it was proved on a given date.
  • Estate planning documents, including the provisions made through a will, should be reviewed periodically — an annual review is described as adequate.
  • A trust, the workbook's other main estate planning tool, works differently: a private trust holding only movable property does not need to be registered, but one holding immovable property must be registered under the Registration Act, 1908 — a separate registration regime from probate, for a separate estate planning instrument.

A worked example

Mr Krishnan, 68, has drafted and signed a will, attested by two witnesses, listing his flat, his mutual fund holdings and his bank deposits for his two children, with a residuary clause covering anything unlisted. He does not register the will — the workbook confirms this is not compulsory.

On his death, a dispute arises between a relative who claims an earlier, informal note was his real intention and his children who hold the signed will. His children apply to a court of competent jurisdiction for probate.

The court examines the will's execution — the signature, the attestation by two witnesses, that it was made voluntarily — and, satisfied it is genuine, issues a certified copy of the will under its seal: the probate. This certifies that the will was proved on that date, and the certified copy is what his children can now rely on to establish their claim under it, rather than the relative's unproven informal note.

Had Mr Krishnan instead placed the flat in a private trust for his children rather than bequeathing it by will, and that trust held only mutual fund units and bank deposits (no immovable property), the trust would not have needed registration at all — a different route to the same goal, with different formalities and no probate involved.

Why NISM asks about it

Chapter 8 (Special Considerations in Retirement), section 8.2.7 (Wills, trusts and other documents linked to estate planning), defines probate immediately after the essential features of a valid will and immediately before the trust deed requirements. Expect a definitional recall question — what a probate is, and that it attaches a certified copy of the will — and a question distinguishing when a will needs court certification (on dispute or to establish title) from the registration rules that separately apply to wills and to trusts.

Common exam traps

  • Probate is a certified copy of the will, not a separate legal document with independent content. It certifies the will; it does not replace it.
  • Registering a will and probating a will are different processes. Registration is optional and done during the testator's lifetime (or by the executor); probate is a court's post-death certification that a specific will was proved.
  • The workbook's definition does not state that probate is mandatory in every case — only what a probate is when one is obtained. Do not assume every will requires probate on these facts alone.
  • A trust's registration requirement is separate from a will's probate — a trust holding immovable property must be registered under the Registration Act, 1908, which is an entirely different formality from certifying a will.
  • Two witnesses attesting the will is a requirement of the will's validity, not of probate itself — probate is what a court does with an already-valid will when its authenticity needs confirming.

Where this is taught

Free preparation for NISM Series X-B

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