Government scraps mandatory probate for wills: What it means for beneficiaries

Scrapping mandatory probate is likely to streamline asset inheritance and bring consistency to India's legal framework.

• India scraps mandatory probate of wills in Mumbai, Chennai, and Kolkata
• Move aims to simplify inheritance and reduce legal delays
• Experts warn of rising will disputes; recommend safeguards for beneficiaries

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The Indian government has taken a significant step towards simplifying the process of inheriting assets by scrapping the mandatory probate of wills in Mumbai, Chennai, and Kolkata. The Repealing and Amending Act, 2025, which omits Section 213 of the Indian Succession Act, 1925, aims to create uniformity and eradicate discrimination in the process of succession.

What is probate?

Legatees initiate probate by filing a petition in court, establishing the will's authenticity. The probate award validates the will, enabling asset distribution. With a probated will, institutions like banks, depository participants and asset management companies (AMCs) process death claims, transferring assets to beneficiaries.

Rajat Dutta, founder of Inheritance Needs Services said, "The process of probate results in validating the will to be the last will, signed without any duress, coercion or under influence and free from being categorised as being suspicious, hence the legal endorsement for distribution of the asset/wealth of the deceased as per the wishes expressed in the will."

Shaishavi Kadakia, Partner at Cyril Amarchand Mangaldas, explained that previously, probate was mandatory for Wills of Hindus, Buddhists, Sikhs, Jainas, and Parsis if the Will was made in the presidency towns (Calcutta, Madras, or Bombay) or related to immovable property in these jurisdictions, to establish executors' or legatees' legal rights in court.

Expected benefits with the removal of mandatory probate

Scrapping mandatory probate is likely to streamline asset inheritance and bring consistency to India's legal framework.

Nitin Jain, Partner at Agama Law Associates, said, "The requirement for mandatory probate was repealed to address several systemic inefficiencies and legal inequities. Historically, the probate process often caused significant delays in estate settlement, frequently resulting in financial strain and interpersonal discord among beneficiaries."

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Probate filings to rise despite removal of mandatory requirement

The Repealing and Amending Bill, 2025, is expected to increase court workload and probate filings.

For instance, if a testator bequeaths assets to few beneficiaries or disproportionately creating dissatisfaction, then a challenge through litigation is the legal recourse. Dutta said, “Legatees need probate for financial assets above respective threshold limits wherein either there are no joint holders or no nominees. For immovable assets, Sub registrar or registrar of assurances can only rely on court order to guide them register the transfer deed from the name of erstwhile owner (now deceased) to name of new beneficiary / heir either through Probate order (if there is a will) or Letter of administration (if deceased died intestate).”

The Banking Laws (Amendment) Act 2025 allows four nominees for banking products like savings accounts, fixed deposits (FDs), and lockers. If the asset owner names four simultaneous nominees and if one of the nominee is not the beneficiary as per the will of the deceased then the bank will process the claim in favour of the nominees, requiring the beneficiary as per will to stake claim with the nominee. “The nominee being a custodian would want to verify claim by seeking the validity of the will - which is probate.” said Dutta.

Experts recommend obtaining probate in specific scenarios, such as high-value estates, multiple properties, shares of family business, and cases with non-family beneficiaries. Kadakia notes, "That said, probate may continue to be relevant to prove the validity of a will which may be contested or to seek certain assets from banks, depository participants, AMCs and so on where there is no nominee."

Potential increase in disputes over will

However, experts caution that the removal of mandatory probate may increase disputes over wills. Shailendra Dubey, Partner at PlanMyEstate Advisors LLP said, "Inherited assets acquired through a non-probated will is always open for challenge even decades later. Any aggrieved family member or interested third party can later challenge the will on grounds of incompetency of testator, coercion, fraud, etc."

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Measures to protect beneficiaries' interests

To protect their interests, beneficiaries can take measures such as registering the will, obtaining declarations from all legal heirs, and considering voluntary probate. Adhiraj Harish, Partner at D.M. Harish & Co., said, "In view of the amendment, in the event a probate is not obtained, a legatee under a will should consider safeguards such as entering into deed of transmissions, family arrangements or obtaining declarations from all the legal heirs of the deceased accepting the will."

Encouraging people to write their wills

The scrapping of mandatory probate is expected to encourage more people to write their wills, specifying who inherits their wealth after them. As Dubey said, "One of the mental blocks of people (specially in these three cities where probate is mandatory) for not writing their will was that the wills need to be mandatorily probated, which is costly and time consuming."

In conclusion, while the removal of mandatory probate is a welcome change, it is crucial for beneficiaries to be aware of the potential challenges and take necessary measures to protect their interests. According to Dutta, "Everyone needs to work towards creating a clear and unambiguous testamentary document to prevent misinterpretations since the will is only activated upon death, and there is no way to ask the writer about the meaning or context of specific language or sentences."