PROBATE

Ø  Every person of sound mind not being a minor may dispose of his property by way of WILL. Any such WILL left by the testator shall become effective only after his / her demise. For making it as a valid instrument, it has to be filed in the Court of Judicature for the grant of Probate / Letter of Administration.

WHAT IS PROBATE ?

Ø  Probate means, the copy of a WILL certified under the seal of the Court of competent Jurisdiction with a grant of administration to the estate of the Testator.

Ø  Letter of Administration means, when a person has died intestate or leaving a WILL of which there is no executor willing and competent to act or whether the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may in its discretion having regard to consanguinity, amount of interest, the safety of the estate and probability that it will properly be administered; appoint such person as it thinks fit to be administrator.

The relevant provisions under the TamilNadu Court-fee and Suits Valuation Act, 1955 are briefly narrated as hereunder:-

SECTION.55 Application for probate or letters of administration

(1) Every application for the grant of probate or letters of administration shall be accompanied by a valuation of the estate.

(2) On receipt of such application, the Court shall send a copy thereof and of the [valuation to the Collector] of the district in which the estate is situated, or if the estate is situated in more than one district, to the Collector of the district in which the most valuable portion of the immovable property included in the estate is situated.

SECTION.56 Levy of fee

 The additional Court Fee chargeable is 2% if the under valuation is upto Rs.5000/- and 3% on Rs.5000/- and above.

(a)  where the application is made within one year of the date of death of the deceased, on the market value of the estate on such date; or

(b)  where the application is made after the expiry of one year from such date, on the market value of the estate on the date of the application:

 (2) For the purpose of the computation of fee – the value of the items mentioned in the affidavit of assets shall be deducted from the value of the estate.

(a) the value of the items mentioned in Annexure B to Part I of Schedule III shall be deducted from the value of the estate: Provided that, when an application is made for probate or letters of administration in respect of part only of an estate, no debt, no expenses connected with any funeral rites or ceremonies and no mortgage encumbrance on any part of the estate other than that in respect of which the application is made shall be deducted:

(b) the power of appointment which the deceased had over a property or which was created under a will shall be taken into account, the value being taken to be the value of the property forming the subject-matter of the power.

Where the property has been purchased jointly in the name of the applicants husband and the applicant, and the application is made only in respect of the husband’s share, Court fee is to be calculated on the value of the share and not on the value of whole property (90 I.C. 620; A.I.R, 1925 Lah, 493)

Where assets are situated both within and outside India and letters of administration are granted for the entire estate, Court fee should be paid only on the value of the assets in India. (A.I.R. 197, A.P.144).

SECTION.59. Inquiry by the Collector

(1) The Collector to whom a copy of the application and of the valuation has been sent under section 55, sub-section (2), shall examine the same and may make or cause to be made by any officer subordinate to him such inquiry if any, as he thinks fit as to the correctness of the valuation or where a part only of the property is situated in his district, of the valuation of that part, and may require the Collector of any other district in which any part of the property is situated to furnish him with the correct valuation thereof.

(2) Any Collector required under sub-section (1) to furnish the correct valuation of any property shall comply with the requisition after making or causing to be made by any officer subordinate to him such inquiry, if any, as he thinks fit.

(3) If the Collector is of opinion that the applicant has underestimated the value of the property of the deceased, he may, if he thinks fit, require the attendance of the applicant, either in person or by his agent, and take evidence and inquire into the matter in such manner as he may think fit, and if he is still of opinion that the value of the property has been underestimated, may require the applicant to amend the valuation, and, if the application for probate or letters of administration is pending in Court, to file a copy of the amended valuation in such Court.

(4) If, in any such case, the probate or letters of administration has or have been granted and the applicant amends the valuation to the satisfaction of the Collector and the Collector finds that a less fee has been paid than was payable according to the true value of the estate, he shall proceed under section 61, sub-section (4); but if a higher fee has been paid than was payable according to the true value of the estate, the excess fee shall be refunded to the applicant.

(5) If the applicant does not amend the valuation to the satisfaction of the Collector, the Collector may move the Court before which the application for probate or letters of administration was made to hold an inquiry into the true value of the property: Provided that no such motion shall be made after the expiration of six months from the date of the exhibition of the inventory required by section 317 of the Indian Succession Act, 1925 (Central Act XXXIX of 1925).

If probate or letters of Administration has already been granted, then the Collector is obliged to proceed to collect the deficit stamp duty. (Judgement dated 4.1.91 in W.P.No.3063 of 1983).

SECTION.64. Recovery of penalties, etc.

Any excess fee found to be payable by an applicant for probate or letters of administration or by an executor or administrator, or any costs under section 60, subsection (4), or any penalty or forfeiture payable by any such executor or administrator may, on the certificate of the1 [the Appropriate Authority specified in the notification under sub-section (1) of section 4 of the Tamil Nadu Board of Revenue Abolition Act, 1980 (Tamil Nadu Act 36 of 1980)], be recovered from the executor or administrator as if it were an arrear of land revenue.

TamilNadu Court-fees and Suits Valuation (Amendment) Act, 2017

            As per schedule I article 6 of TamilNadu Court-fees and Suits Valuation (Amendment) Act, 2017, the Probate of a WILL or letter of administration with or without will annexed court fee is three per cent on the amount or value of the estate in respect of which the grant of probate or letter of administration is made, subject to a maximum of Rs.25,000/-.

Reference:-

1)    TamilNadu Court-fees and Suits Valuation Act, 1955.

2)    TamilNadu Court-fees and Suits Valuation (Amendment) Act, 2017