The difference between probate and a letter of administration is who receives the grant. Probate goes only to the executor named in the will (section 222, Indian Succession Act, 1925). Where there is no will, or no executor who will act, the family applies for letters of administration. Both carry the same court fee: in Maharashtra, Rs 28,000 on a net estate of Rs 5 lakh.

Which petition your family files, and whether anyone has to give a bond, turn on three questions: is there a will, does it name an executor who will act, and what does the estate hold. A WillJini lawyer asks your family these three questions to work out which petition to file.

Where this page sits

If a bank, a housing society or a buyer has asked your family for a grant, check whether the estate needs one before you apply.

Related guides:

• Is probate necessary for a registered will?
• How a probate petition runs
• Succession certificate or letters of administration

What Is the Difference Between Probate and a Letter of Administration?

Probate is granted to an executor, whom the testator appointed in the will, while letters of administration are granted to an administrator, whom the court appoints when there is no executor (section 2).

An administrator must give the court a bond with at least one surety for administering the estate (section 291). An executor gives none, unless the deceased was a Hindu, Muslim, Buddhist, Sikh, Jaina or exempted person and the Judge asks for one. In the Bombay High Court the administrator's bond is Form No. 118, with one surety for the gross value of the estate unless the Judge directs otherwise (rule 420).

Probate "establishes the will from the death of the testator, and renders valid all intermediate acts of the executor" (section 227). Letters give the administrator the deceased's rights as if granted the moment after the death (section 220). But they do not validate anything the administrator did before the grant that damaged the estate (section 221).

Where the deceased was a Hindu, Muslim, Buddhist, Sikh, Jaina or exempted person, an administrator also needs the permission of the court that granted the letters before selling, mortgaging, gifting or exchanging immovable property, or leasing it for more than five years (section 307).

When Does a Family Apply for Probate?

A family applies for probate when there is a will and it names an executor who is willing and able to act. The will does not have to use the word executor, so long as its wording shows who is to carry out its instructions (section 222). The person applying must be an adult of sound mind (sections 223 and 236).

The petition attaches the will and states when the testator died, that the document is the last will and was duly executed, the assets likely to come into the executor's hands, and that the petitioner is the executor named in it (section 276). In Mumbai, probate petitions are filed in the Bombay High Court on its Original Side. An uncontested petition is dealt with by the Prothonotary and Senior Master, who exercises the District Judge's powers (Original Side rules 370 and 371).

When Is a Letter of Administration Granted Instead?

The court grants letters of administration when there is no will. It also grants them when the will names no executor, or the executor it names is legally incapable, refuses to act or has died. A named executor must first be cited to accept or renounce, and one who renounces cannot later apply for probate (sections 229 to 231). The court then grants letters with the will annexed. These go first to a universal or residuary legatee (section 232), and otherwise to those entitled on an intestacy, another legatee or a creditor (section 234).

An executor who lives abroad cannot take probate through an attorney; the attorney is given letters of administration with the will annexed, limited until the executor obtains a grant himself (section 241). In the Bombay High Court the attorney must live in Maharashtra (rule 394).

Where there is no will and the deceased was a Hindu, Muslim, Buddhist, Sikh, Jaina or exempted person, administration may be granted to anyone entitled to the whole or part of the estate, and the court may choose one or more of them (section 218). For a Hindu, Muslim, Buddhist, Sikh, Jaina, Indian Christian or Parsi, letters are not required to establish a right to the property (section 212(2)). They remain available, and a bank or a buyer may still ask for them.

Do You Need Probate If You Have a Letter of Administration?

You do not need probate as well. Probate and letters of administration are alternative grants for the same estate. Once a grant is made, only the grantee may sue or act for the deceased in that state until it is recalled or revoked (section 216). Either grant covers all the property in the state of grant, and it is conclusive of the holder's title as the deceased's representative against anyone who owed the deceased money or holds property of his (section 273).

What Do They Cost, and How Long Do They Take?

Probate and letters of administration are charged the same court fee, which in Maharashtra is Rs 28,000 on a net estate of Rs 5,00,000 and Rs 65,500 on Rs 10,00,000. Schedule I Article 10 of the Maharashtra Court-fees Act, 1959 charges both alike, band by band on the value of the property. If a succession certificate was taken first for the same estate, the fee already paid is deducted.

The law fixes only minimum waits: 7 clear days after the death for probate, and 14 clear days for letters (section 293 of the Indian Succession Act, 1925). The Bombay High Court also makes no grant until 14 clear days after the citation has been served and published (rule 397(4)). If an heir files a caveat within 14 days of service and supports it with an affidavit within 8 days, the petition becomes a contested suit.

What Happens After the Grant?

After the grant, the estate vests in the executor or administrator, who becomes the deceased's legal representative for all purposes (section 211). The holder must file an inventory of the estate in the court within six months of the grant, and an account within one year (section 317). The court can revoke the grant if the holder wilfully fails to file them (section 263).

How Does WillJini Handle a Probate or Administration Petition?

WillJini assists end to end with probate and administration petitions, covering the advice, the process and the correspondence. Every legal heir and the witnesses give an affidavit, with a list of the properties and their valuations. From those valuations WillJini works out the court fee, which differs from state to state, and assists with the court visits and any objections through to the grant. The service fee is quoted on enquiry.

FAQs

Do you need probate if you have letters of administration?

A family that holds letters of administration does not also need probate, because an estate takes one grant. The executor named in the will takes probate and anyone else takes letters, and either grant gives the holder title as the deceased's representative throughout the state of grant (Indian Succession Act, section 273).

Can letters of administration be granted when there is a will?

Letters of administration are granted with the will annexed when the will names no executor, or when the named executor refuses to act, is legally incapable or has died. They go first to a universal or residuary legatee (section 232).

Who gives the administration bond?

Every person granted letters of administration gives the court a bond with at least one surety (section 291). An executor taking probate gives none unless the Judge asks for one in the cases section 291(2) lists.

What happens after letters of administration are granted?

The estate vests in the administrator, who files an inventory within six months and an account within one year (section 317), and, where the deceased was a Hindu, Muslim, Buddhist, Sikh, Jaina or exempted person, needs the court's permission before selling or mortgaging immovable property (section 307).

What is the court fee for probate or letters of administration in Maharashtra?

Maharashtra charges the same court fee on probate as on letters of administration, under Schedule I Article 10 of the Maharashtra Court-fees Act, 1959: Rs 28,000 on a net estate of Rs 5,00,000 and Rs 65,500 on Rs 10,00,000.