Will and probate for property in India: making, registering, proving

The rule

• Who can make a will. “Every person of sound mind not being a minor” (s. 59). A will caused by fraud, coercion or importunity that takes away free agency is void (s. 61).
• What a Hindu can leave. Section 30 of the Hindu Succession Act lets any Hindu dispose of property by will, and its Explanation includes a male Hindu’s interest in a Mitakshara coparcenary (as quoted in Uttam v. Saubhag Singh, 2016). On coparcenary shares, see partition of ancestral property.
• Which rules apply to Hindu wills. Section 57 and Schedule III extend a list of sections of the 1925 Act, including sections 59, 61, 62, 63 and 70, to wills of Hindus, Buddhists, Sikhs and Jains; clause (c) covers all such wills made on or after 1 January 1927. Part VI does not apply to Muslims (s. 58).
• Execution (s. 63). The testator signs or affixes a mark, placed so that it appears intended to give effect to the writing as a will. Each of two or more witnesses has seen the testator sign or received the testator’s acknowledgement, and signs in the testator’s presence. Witnesses need not be present at the same time, and “no particular form of attestation” is necessary.
• Revocation (s. 70). By a later will or codicil, by a signed writing executed like a will, or by burning, tearing or destroying it with the intention of revoking it. Marriage does not revoke a Hindu’s will (s. 57 proviso).

Step by step: making the will

1. List the property precisely: address, survey or flat number, and how you hold it (self-acquired, inherited or coparcenary share).
2. Name an executor. Probate “shall be granted only to an executor appointed by the will” (s. 222); it cannot be granted to a minor or a person of unsound mind (s. 223).
3. Sign before two witnesses as section 63 requires. Under s. 67, a bequest to an attesting witness or the witness’s spouse is void; that section is not in the Schedule III list for Hindu wills, so ask a lawyer before choosing a beneficiary as witness.
4. Decide on registration. It is optional (s. 18(e)). After the testator’s death, another person can still present it; the officer must be satisfied that the testator executed it and is dead (s. 41(2)).
5. Or deposit it sealed. A testator may deposit the will “in a sealed cover” with any Registrar (s. 42). The testator may withdraw it (s. 44); after the death it is opened and copied on application (s. 45).

Step by step: probate after the death

1. Petition the District Judge (or the High Court, which has concurrent jurisdiction under s. 300). The petition states the time of death, that the writing is the last will, that it was duly executed, the assets likely to come to the petitioner’s hands and that the petitioner is the named executor (s. 276).
2. Have one attesting witness verify it, “when procurable” (s. 281).
3. Caveats. Anyone opposing the grant may lodge a caveat (s. 284); a contested case then proceeds as a suit (s. 295).
4. Inventory and account. The executor exhibits an inventory within six months of the grant and an account within one year, or such further time as the court allows (s. 317).

A probate has effect over the deceased’s property “throughout the State in which” it is granted and is conclusive as to the representative title (s. 273).

Was probate compulsory? The 2025 change

Before 20 December 2025, section 213(1) said “no right as executor or legatee can be established in any Court of Justice” without probate or letters of administration. Section 213(2) applied it to wills of Hindus, Buddhists, Sikhs and Jains within section 57(a) and (b), meaning wills made within the territories once under the Lieutenant-Governor of Bengal or the ordinary original civil jurisdiction of the High Courts at Madras and Bombay, or dealing with immovable property there, and to certain Parsi wills.

The Repealing and Amending Act, 2025 (Act 37 of 2025) provides that “section 213 shall be omitted”, removes ”, 213” from section 3(1), and changes section 370(1) to read “to be established by letters of administration”. Its section 4 says it does not affect “any right, title, obligation or liability already acquired, accrued or incurred”, or any remedy or proceeding in respect of them. Probate itself still exists, and a housing society, a bank or a registrar may still ask for it. For who inherits when there is no will, and for mutation, see inheriting property in India.

Which professional to consult

A property lawyer (an advocate enrolled with the State Bar Council) drafts the will and files the probate petition. This guide is general information, not legal advice. For an executor abroad, see NRI power of attorney from abroad.

Sources and limits

The 1925 Act text is a High Court copy modified as on 26 November 2018; the 2025 amendments come from the Gazette. Not read: state court fees for probate, registration fees for wills, and Muslim personal law on wills.