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probate
Under Section 213 ISA, probate is mandatory for the Will of a Hindu, Christian, or Parsi testator when: (a) the Will was executed within the presidency limits of Bombay, or (b) any of the property covered by the Will is situated within the presidency limits.
'Presidency limits of Bombay' historically covered a specific geographic area corresponding to the Bombay Presidency. Today, for practical purposes, this includes Mumbai city, Mumbai suburban district, Thane, and specified adjoining areas.
For property in Pune, Nagpur, or elsewhere in Maharashtra outside the presidency limits, probate is not mandatory — beneficiaries can transmit assets with a Will, death certificate, and identity proofs.
The Bombay High Court has Original Civil Jurisdiction for testamentary matters in the presidency limits. The Testamentary and Intestate Jurisdiction (T&IJ) branch handles probate petitions.
For estates below a specified value (currently around ₹5 crore, subject to revision), the City Civil Court also has concurrent jurisdiction. Practice varies — many practitioners file at the High Court regardless of value for standard cases.
For property outside Mumbai but within Maharashtra where probate is nonetheless sought, the appropriate district court has jurisdiction.
To file a probate petition, gather:
Original signed Will (with any codicils).
Death certificate of the testator.
Identity proofs of the executor(s) named in the Will.
Proof of executor's relationship to the testator, if applicable.
Schedule of assets covered by the Will, with estimated valuations.
Certified copies of relevant property documents (sale deeds for real estate, share certificates, bank statements).
Family tree affidavit showing all legal heirs — even those not named as beneficiaries.
Consents (Section 279 ISA affidavits) from all legal heirs where possible, or their addresses for issuing notices.
Address proof of the executor(s) and beneficiaries.
Attestation affidavits from the two witnesses to the Will (if they are alive and available).
Bombay High Court probate fees are calculated on the total value of the estate covered by the Will. Rates are on a slab basis:
Up to ₹1 lakh: nil.
₹1 lakh to ₹3 lakh: 4% of value.
₹3 lakh to ₹5 lakh: ₹12,000 plus 6% on excess above ₹3 lakh.
Above ₹5 lakh: ₹24,000 plus 7.5% on excess above ₹5 lakh, subject to a cap.
The cap on Bombay probate fees is currently ₹75,000 for standard estates. For very large estates, this cap makes Bombay probate relatively affordable in absolute terms.
Fees are payable at the time of filing. Payable through court fee stamps or online payment.
1. Draft the probate petition through an advocate. Standard format under Rule 388 of the Bombay High Court (Original Side) Rules 1957.
2. File the petition with all documents and court fees. Assigned a testamentary case number.
3. Court issues 'general citation' — public notice inviting objections. Published in Government Gazette and often in local newspapers.
4. Individual notices sent to legal heirs listed in the family tree affidavit.
5. Objection period: typically 30-45 days. Objectors file caveats and objections.
6. If no objections: matter goes for uncontested hearing. Court reviews documents, hears the executor's advocate, and — if satisfied — grants probate.
7. If objections: contested probate proceedings begin. Evidence recorded, cross-examinations conducted, arguments heard. Can extend to years.
8. On grant: probate certificate issued. Executor can now proceed to administer the estate.
Uncontested probate: 6-12 months from filing to grant, depending on court workload and quality of documentation. Well-prepared filings with all documents in order and clear family consents can move in 4-6 months.
Contested probate: 2-5 years, occasionally longer. Contests based on capacity or undue influence require substantial evidence recording.
Interim relief: pending final probate, the court can grant interim custody of estate assets to the executor, or restrain transfers by opposing parties.
Missing witness attestation: if the two Will witnesses are deceased or untraceable, additional evidence is required (handwriting evidence, circumstantial proof). Choose younger witnesses at signing and maintain their contact details.
Incomplete family tree: courts require full disclosure of all legal heirs — even those not named as beneficiaries. Missing a niece or cousin can delay proceedings.
Unregistered Will: while not mandatory, registration adds evidentiary weight. Contests are more likely for unregistered Wills.
Property valuation disputes: the estate value determines court fees. Under-valuation leads to delays; over-valuation increases fees. Get proper valuations from qualified valuers.
Advocate coordination: probate is specialised. Use an advocate with testamentary jurisdiction experience — not a general litigation counsel.
For Mumbai testators with substantial estates and named executors, probate is mandatory and typically routine — but proper Will drafting, complete documentation, and experienced counsel make the difference between 6 months and 6 years.
For Law Tarazoo customers with estates in Mumbai, our probate assistance service (separate from the Will-drafting service) provides end-to-end support for the executor.
This is general legal information, not legal advice. For your specific situation, consult a Law Tarazoo advocate.
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