VALUATION IN PROBATE MATTERS

I. INTRODUCTION TO VALUATION

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 VALUATION IN PROBATE MATTERS

II. INTRODUCTION TO PROBATE MATTERS

II.1 PROBATE MATTERS

Probate means copy of the will certified under the seal of a court of a competent jurisdiction. Probate of a will when granted
establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. It is conclusive
evidence of the validity and due execution of the will and of the testamentary capacity of the testator.
A probate differs from succession certificate. A probate is issued by the court, when a person dies testate i.e. having made a will and the
executor or beneficiary applies to the court for grant of probate. In case a person has not made a will his legal heirs will have to apply to
the court for grant of a succession certificate which will be given as per applicable laws of inheritance.

II.2 PROBATORY ELEMENTS

Executor The person named by the decedent in his or her will to process the estate- or another
interested person who has the original will.
Petition for Probate of Filed by the executor according to the forms prescribed by the respective State or drafted by Self.
Will &Appointment of
Executor
Administrator Appointed in absence of will and executor thereof, by court. Often the surviving spouse, adult child or
concerned interested person.
Probate Estate Refers to any property that's subject to the authority of the probate court.
Non-Probate Estate Assets disposed of outside the probate process
Petition for Probate Submitted to the court affixed with the will in question.
Fidelity Bond An insurance policy in favor of the Estate to protect against the possibility of the Executor mishandling
(submitted by the the funds. The cost of the Bond is paid by the Estate.
Executor)

II.2.1 FUNCTIONS OF THE EXECUTOR

ø Collects, inventories and appraises all assets that are subject to probate
ø Pays taxes and creditors
ø Pays the costs of administration, such as for a lawyer and appraisers
ø Formally transfers the estate property according to the will, or by the state laws of "intestate succession" if there is no will
ø Submits the Petition for Probate and Fidelity Bond for protection of Estates to be probated, and other properties.
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 VALUATION IN PROBATE MATTERS

II.2.2 STEPS IN PROBATORY PROCESS (Briefed)

Presenceof Will
Fidelity Bond
Executor declared by will

Executor / Administrator Petition for Probate + Will

Executor appointed by court Court of Law

Court of Law

Absenceof Will
Legal Heirs Letter of Succession
The Executor has thirty days from the date of appointment to gather a list of the decedent's assets and present the Probate Court with
an Inventory. They will conduct a diligent search for assets and will notify all actual or likely creditors.
The Executor will usually open a checking account in the Estate's name for consolidating all debits and credits for the estate. The
Executor will generally obtain a Federal and State Taxpayer ID number for the Estate.
If there is real estate to dispose of, the Executor should get an appraisal and list the property with a Realtor. When there is an offer to
buy, he must seek the approval of the Probate Court unless otherwise provided in the will.
The Executor must file the Succession Tax Return, and pay the applicable tax within six months from the date of death.
If the Estate is subject to the Federal Estate Tax, the Executor must prepare and file the IRS Form 706 Estate Tax Return and make
payment within nine months of the date of death. The Executor may be required to liquidate Estate assets to raise money for the tax.
hen the taxes, debts and administrative expenses are finalized, the Executor files the Final Account with the Probate Court, showing all
of the receipts and expenses of the Estate, and the proposed final distributions to the beneficiaries or heirs.
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 VALUATION IN PROBATE MATTERS

II.3 DIFFERENT TYPES OF WILL

TYPESOFWILL

JOINT &M U TUAL CO NDITIONAL &

HANDWR
ITTENWILLS ORALWILLS WILLS CONTIGEN TWILLS S
TATUTORYWILLS

ORALWILLS JOINT &MUTUALWILLS

Prepared when an opportunity to draft a proper will is not viable, it generally does not suffice
HANDWRITTEN WILLS the requirements of a Standard Will. The will represents the mind-set and intent of the
will.
An oral will is basically a declaration. These wills have more drawbacks than handwritten wills. They
ORAL WILLS are not recognized everywhere they usually require at least a present fear of death, and they usually
apply only to personal property.
A joint will is one will that covers the distribution of the property of two or more people. A mutual will is
another term for a joint will, because a mutual will is also a will executed by a group of people. Usually,
JOINT & MUTUAL it's a married couple that signs one will
WILLS in stead of each spouse having a separate will. A mutual will is quite often simply called a
reciprocal will.
A conditional will is simply a will that goes into effect after a condition is met. A contingent will is a
CONDITIONAL &
will that is based on some future event not closely related to the writing of the will. A contingent will
CONTIGENT WILLS
anticipate some event (a contingency) occurring that was not a reason why the will was written.
STATUTORY WILLS A statutory will is a will that contains standardized will terms as provided by state law. States have

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made these laws to help simplify will drafting.

A codicil is a document that is added to a will and is incorporated in the will, about conditions
CODICILS
occurring before the Death of the decedent.
If a person gets married after writing a will, the new spouse is called an after-acquired spouse. Most
AFTER –ACQUIRED
experts say that if a person is married after writing a will, a new will should be written. Under the
SPOUSES
general law of wills, there is a rule for omitted spouse protection.

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 VALUATION IN PROBATE MATTERS

I. PROBATE OF A WILL AS PER Indian Succession Act , 1925

PROBATE OF A WILL
According to Section 2 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 of the estate of the testator". It is nothing but a decree
passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased.
NECESSITY TO PROBATE A WILL
Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to
any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jaina or an exempted person),
those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of
his estate and effects in the order and according to the rules framed in this section.
Under Section 212(2) of the Indian Succession Act, 1925,
TIME FRAME Hindus, Muslims,
FOR PROBATING A WILLetc. are not bound to apply for letters of

There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of
administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive
only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate.

DOCUMENTS TO BE SUBMITTED TO AVAIL A PROBATE

(a)Original Will of the deceased.
(b) Title Deeds pertaining to the immovable property mentioned in the Will, if any.
(c)Documents pertaining to the movables, mentioned in the Will, if any.

PROCEDURE FOR OBTAINING A PROBATE

A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section
374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper
publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted
into a regular suit and upon contest the same will be disposed off, by delivering the judgment and decree, in accordance
with law.

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 VALUATION IN PROBATE MATTERS

II. PROBATE FEES

Court fee payable in the High court in the following category of the cases as per the amended Bombay court
fees act, 1959(with effect from 1st October, 2001).
Probate of a will or letters of administration with/without will annexed Percentage
When the amount or value of the property in respect of which the grant of probate or letters is 2%
made exceeds one thousand rupees, on the amount or value upto fifty thousand rupees.
When the amount or value of the property in respect of which the grant of probate or letters is 4%
made exceeds fifty thousand rupees, on the part of the amount or value in excess of fifty
thousand rupees, upto two lakh rupees
When the amount or value of the property in respect of which the grant of probate or letters is 6%
made exceeds two lakh rupees, on the part of the amount or value in excess of two lakh
rupees, upto three lakh of rupees,
When the amount or value of the property in respect of which the grant of probate or letters is7 ½ % subject to
made exceeds three lakh rupees, on the part of the amount or value in excess of three lakh of maximum of
rupees 75,000Rs
Provided that when, after the grant of a certificate under Part X of the Indian Succession ACt, 1925, or under
Bombay Regulation VIII of 1827 or any corresponding law for the time being in force, in respect of any
property included in an estate, a grant of probate or letters of administration is made in respect of the same
estate, the fee payable in respect of the latter grant shall be reduced by the amount of the fee paid in respect
of the former grant.

Certificate under Part X of the Percentage

Indian Succession Act, 1925.
The fee leviable in the case of a probate (Article 10) on the amount or value of any debt or
security specified in the certificate under section 374 of the Act, and [two times] this fee on
the amount or value of any debt or security to which the certificate is extended under
Section 376 of the Act.
(1) The amount of a debt is its amount including interest on the day on which the inclusion
of the debt in the certificate is applied for, so far as such amount can be ascertained.
(2) Whether or not any power with respect to a security specified in a certificate has been

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 VALUATION IN PROBATE MATTERS

conferred under the Act; and where such a power has been so conferred, whether the
power is for the receiving of interest of dividend on, or for the negotiation or transfer of the
security, or for the both purposes, the value of the security is its market value on the day
on which the inclusion of the security in the certificate is applied for, so far as such value
can be ascertained.

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 VALUATION IN PROBATE MATTERS

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 VALUATION IN PROBATE MATTERS

I. CASE STUDIES
3.2 Attach a dimensioned site plan
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PART I - QUESTIONAIRE IMPROVEME
3.1 Valuation done by KSHITIJ A.PATEL 3.2 Attach plans and elevations of all structures
Govt Registered valuer, 4 standing on the land and a layout plan.
Immovable Property Valuer, Furnish technical details of the building on a
3.2
B.E(Civil) separate sheet.(the annexure to this form ma
5
3.2 Purpose for which valuation is made For market value for will purpose used)
3.3 Date as on which valuation is made 16/7/2000 1) Is the building owner-occupiedenanted/both
3.2
3.4 Name of owner/owners Tirth Ramchandra Patel 2) if party owner-occupied specify portion and
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of area under owner –occupation.
3.5 Is the property under joint ownership/co-ownership N.A
3.2 What is the floor space index permissible and
3.6 Are the shares divided? YES 7 percentage actually utilized?
3.7 Brief description of property A two storied residential tenement RENTS
building in interior of society.
1) Names of tenants/lasses/licensees, etc.
3.8 Location ,street, ward no 6 Nandgopi society,Nr.navkar
2) Portion in their occupation.
temple, B/H telephone 3.2
3) Monthly or annual rent/compensation/licens
exchange,vasna 8
etc. paid by each.
Ahmadabad
4) gross amount received for the whole prope
3.9 Survey/plot no.of land S.P.NO.6,F.P.NO 359
3.2 Are any of the occupants related to, or close
3.1 Is the property is residential /commercial area residential 9 business associates of the owner ?
0 Is separate amount being recovered for the us
3.1 Classification of locality Middle class 3.3 fixtures like fans, geysers, refrigerators, cooki
1 0 ranges, built-in wardrobes etc. or for service
3.1 Proximity to civic amenities Within 1 to 3 kms changes? if so, give details.
2 3.3 Give details of the water and electricity charg
3.1 Means of surface communication AMTS buses,autorickshaws and 1 any,to be borne by the owner.
3 private vehicles 3.3 Has the tenant to bear the whole or part of th
Land area supported by documentary proof Shape of whole plot is irregular. 2 of repairs and maintenance? give particulars.
3.1
Plot level is higher than TPS road 3.3 If a lift is installed, who is to bear the cost of
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level 3 maintenance and operation, owner or tenant?
3.1 Roads, street or lanes on which this land is abutting Abutts society’s road on east side 3.3 If a pump is installed, who has to bear the cos
5 4 maintenance and operation, owner or tenant?
3.1 Freehold/leasehold Freehold but belongs to society Who has to bear the cost electricity charges fo
6 EFFORTS BY : MADUMITA SADAGOPAN 3.3 (1005)lighting
; UJJWAL of MEHTA
common(3005) 10
space like entrance hall, s
Is leasehold, the name of lessor/lessess, nature of N.A 5
passages, compound, etc-owner or tenant?
lease ,dates of commencement and termination of 3.3 What is the amount of property tax? Who is to
lease and terms of renewal of lease. 6 it? Give details with documentary proof.