I refer to my earlier post "When there is “Will” there is a better way" .

I referred the matter relating to "Probating a Will in India" to Mr.J.Radhakrishnan ( who is a leading legal counsel) whose response to my questions is reproduced hereunder:

1. If a will is executed in U.S by a person of Indian origin involving immovable property in India, can it be probated in India? For doing so, should it be first probated here in the place of execution?

First probate applies only if there is an executor or executors named in the will. Otherwise, the beneficiary(legatee) can only apply for Letters of Administration with the will attached.

 If the testator i.e. the executant of the will is a christian, it has to be compulsorily probated/letters of administration obtained as the case may be, in the Court in whose jurisdiction the testator last resided or where the property is situate.

If the testator is a Hindu, probate or letters of administration have to be obtained if the will concerns immovable property situate with in the Metropolitan Cities of Chennai, Mumbai or Kolkatta.
If he is a Muslim, there is no such requirement.
I must add that probate or letters of administration is required to be obtained, if the will has to be accepted/acted upon without any question by any court or public authority.  The probate or letters of administration obtained from the competent court is what is called 'judgment in rem' meaning 'evidence by itself'.  Wills which do not fall within the above category can be proved in any litigation by examining at least one attestor(witness) of the will. In order to have an Indian resident attestor, the person executing the will (testator) can think of sending the will to a reliable friend or relation (not a beneficiary) to attest it as one of the witnesses, and send it back to the executant.
There is no requirement that the will has first to be probated in U.S. before it is submitted to the Indian Court for the applicable relief.

2. If it has to be probated in India, since the property concerned is in India, does the provision changes between (a) an Indian Citizen who is a permanent resident of U.S and (b) a U.S citizen who is also an Overseas Citizen of India (OCI).

Ans: - No difference whatsoever.
3. The process of getting the "Last Will" probated, how complicated it is in India and how much time it may take? What are the requirements needed to get it done.

Ans:- Only the will which is the last that can be probated/letters of administration obtained. As I said, in the case of obtention of probate or letters of administration, one attestor has to sign the application for the same in addition to the executor or beneficiary as the case may be.  One attestor has to be examined in court for proof of the execution.  If the witness/attestor is a foreign resident, one can request the court to have him examined by video conferencing.  It depends upon the equipment the court in India can command in each case for such a course, possible under the present  advancement of technology. If the matter is contested, then, unless the opponent agrees for video conferencing in cases where the Court agrees for such a course, the witness has to come before the court  to be examined/cross-examined.

The application fee is not much. But ultimately, if the probate or letters of administration is to be issued by the concerned court, one has to pay 3% of the market value of the property in question as on the date of death of the testator if the application is made within one year of the date of death or if the application is made one year after death, as on the date of application. The above is the scale of court fees applicable in Tamil Nadu. I am not aware of the fees elsewhere. Going by the experience in the Madras High court, if the will is not contested, it will take not less than one year for the whole process to be completed. In Mumbai and Kolkatta, Delhi,it can be more.

One has also to incur expenditure by way of lawyers' fees which are negotiable between the client and lawyer. The lawyer may quote a fee depending upon the value of the property concerned.  I would suggest that residents in U.S.A. may contact some Indian Lawyer practising there who can liaise with his  Indian Lawyer friend."

I thank immensely Mr.JRK for taking time to clarify these things in detail.


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