“At some point of time in life, everyone is destined to face Death as no one can deny death.”
An owner of a property has a discretion to plan the transfer of his property by making a Will during his lifetime by the concept of ‘Testamentary Succession’, which takes effect as soon as the testator dies. But if he dies intestate i.e., without making a Will, then the Indian Succession Act, 1925 and Hindu Succession Act, 1956 come into play and the transfer will take place by way of ‘Intestate Succession’. It is a rule of law that a property can never be owner-less. As soon as the owner dies, the property floats to the person(s) named under the Will or to the legal heirs of the Deceased in the absence of Will.
The property can be transmitted in two different ways:
- By way of Probate of Will
- By way of obtaining a Succession Certificate
- PROBATE OF WILL
Death is an undeniable truth which can never be avoided so why not make ourselves prepared for it? An owner of a property may reduce the burden of court by making a will in order to leave succession at the hands of Will and not on the shoulders of Court. When a testator dies leaving behind a Will, then succession takes place in accordance with the Will.
According to Section. 2(f) of the Indian Succession Act, 1925, probate refers to a copy of Will that is certified by the seal of a court of Competent Jurisdiction. It is a legal process that gives validity to a Will and by which the executor (person named under will), beneficiaries and the monetary value of the Will is determined in court of law.
- SUCCESSION CERTIFICATE
A Succession Certificate is a sanctioning document granted by the court in favour of a person who files the petition along with other documents like original death certificate of the deceased, proof of his financial assets and an affidavit in this regard. Also, the legal heirs have to establish their relationship proof with the deceased in the court of law. Through the succession certificate, the legal heirs get entitled to inherit the debts and securities of the deceased who died intestate.
i. In the case of Probate, the testator leaves a will behind before his death. Whereas, Succession Certificate is a concept that comes into play when the testator dies intestate i.e., without leaving a will behind.
ii. Succession Certificate is a legal process which is in line with the concept of Intestate Succession, while in contrast, Probate of Will is a concept in line with Testamentary Succession.
iii. Scope of Succession Certificate is narrower than the scope of Probate. Succession Certificate aims for the protection of debtors who gets legally discharged by facilitating payment of Debts and Securities through the estate of deceased. Succession Certificate does not make the grantee an heir of estate rather it only makes him entitled to recover his money from the estate. Whilst, Probate makes the executor an heir of the estate.
Probate of Will and Succession Certificate are distinct phenomena having different roles to play in order to facilitate the transmission of property left by the deceased. The ambit of Succession Certificate is very limited in comparison to Probate of Will as Succession Certificate is required to be granted mainly for facilitation of movable assets whereas in contrast, for the transmission of immovable property, grant of probate is more suited.