Probates No Longer Compulsory

The Lok Sabha and the Rajya Sabha passed the Repealing and Amending Bill, 2025 ("Bill") in the recently concluded Winter Session with the objective of removing provisions of law which have ceased to be in force or have become obsolete with the passage of time. The Presidential assent and notification in the Official Gazette of the Bill is awaited, and the Bill is expected to come effect in January 2026.

One of the key repeals under the Bill is the deletion of Section 213 of the Indian Succession Act, 1925.

The Current Law:

• Section 213 mandates obtaining Probate of a Will executed by a Hindu, Buddhist, Sikh or Jaina in respect of (i) Wills executed in territories under the Lieutenant-Governor of Bengal or within the ordinary original civil jurisdiction of the High Courts of Madras and Bombay, (ii) Wills executed outside the abovementioned territories but for immovable properties situated in the said territories and (iii) Wills made by Hindu, Buddhist, Sikh or Jaina to which (i) and (ii) above do not apply.
• Probates are also mandated under Section 213 for Wills made by Parsis within the local limits of the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay and for Wills made outside the abovementioned areas but for immovable properties made within the said areas. This provision does not apply to testamentary dispositions made by Muslims and Christians.

What is proposed:

• The Bill proposes to completely delete the Section 213 of the Indian Succession Act, 1925 and accordingly alter the consequential provisions to remove reference of the said Section in the Act.
• The deletion of this Section 213 has removed the compulsory requirement of obtaining a Probate or letters of administration for Wills from the concerned Courts. The objective of the omission, as stated in the note to the Statement of Objects and Reasons, is to remove the discriminatory nature of the provision compelling Hindus, Buddhists Sikhs and Jains to obtain a probate of letters of administration and to attain uniformity across the board.
• The repeal is slated to apply prospectively and will not impact any ongoing processes and applications for probates and/or letters of administrations that have been filed or initiated.
• The concept of a probate or letters of administration for a Will itself has not been abolished under the amendment, only the compulsory requirement of the same under the specific conditions for specific class of people has been removed. Further, the process of obtaining a probate or letters of administration for a Will has now become a completely voluntary and discretionary process, especially in cases where there are potential disputes on succession lurking.

Impact of the Bill:

Under Section 273 of the Indian Succession Act, the grant of a probate or letters of administration for a Will is conclusive proof of representative title of the executor or administrator over the estate of the deceased and shall have an effect over all property of the deceased, whether movable or immovable. The Bill in no way diminishes the importance of a probate or letters of administration for a Will. As stated above, it has only altered the mandatory nature to a discretionary one while still retaining that a probate as a conclusive proof of the genuineness, validity and authenticity of a Will.

Letters of Administration will still be required in case a person dies intestate i.e., without leaving behind a Will.

The ultimate impact of the said deletion, in our view, is multi-fold:

• Simplification of Procedure/Faster Enforcement – With removal of the compulsory probate, the transfers as per the directions of the Will can be effected faster in favour of the legatees/beneficiaries and in a simplified manner. Procedural delays of the courts in issuance of probates adversely affecting timely transfer will soon become history.
• Reduction of burden on the judiciary – This change in the law will considerably reduce the burden on the judicial machinery. While one cannot rule out the process of obtaining a probate voluntarily, most often in cases where there are potential disputes, the removal of the compulsory nature of a probate or LOA will certainly give some relief to the courts.
• Lower costs – The beneficiaries and legatees will save on court fees and legal costs.
• Lesser scope for disputes – Removal of procedural limitations of a mandatory probate will leave less scope and opportunity for troublemakers to raise unsubstantiated disputes and abuse the process to harass the rightful legatees.
• Metro cities i.e., Calcutta, Mumbai and Chennai at par with non-metro cities.

The amendment however also poses a few challenges such as,

• Non-authentication of Wills and exposure to risk – A Probate closes all questions on the authenticity and validity of a Will as it is issued after careful judicial scrutiny. This change in the position of law may affect and put at risk transfers effected according to the directions of non-probated Wills if such Wills are challenged on the grounds of authenticity.
• Increases in cases of fraud and forgery – Forged and fraudulent Wills with an attempt to defraud and dupe legitimate heirs may increase in the absence of the requirement of a probate

Our Thoughts on the way forward

With the removal of this mandatory process, i.e., proving the validity of a Will via a probate issued after thorough judicial scrutiny, other safeguards will have to be factored in to overcome any doubts on Wills such as usage of clear, specific language for drafting a Will, registration of Wills, appropriate disclosures to legatees, nominations where applicable to be made in line with the provisions of a Will, amongst others.

The law per se does not require that Will be drafted by legal professionals. However, a lawyer's role now becomes even more significant to ensure that Wills are properly drafted and that other procedures ensuring adequate safeguards are also put in place to avoid disputes and challenge to Wills resulting in the testator's wishes being followed without any hassles.

If the above safeguards are attended to carefully, succession planning will become more accessible and efficient. The fears of the common man regarding the inordinate time required for obtaining probate thereby delaying transfers to the beneficiaries have been largely allayed by this crucial change in the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.