Letters of administration: the grant where there is no executor, or no will

Which grant applies to your facts

Three grants come out of the same court, on the same kind of petition, at the same ad valorem fee. Choosing between them is not a matter of preference: the facts decide, and applying for the wrong one wastes the whole proceeding.

The first question is whether there is a will. The second, if there is, is whether it names an executor who is alive, capable and willing to act. Those two questions settle it.

Section 222(1) is short and absolute: probate shall be granted only to an executor appointed by the will. Sub-section (2) allows the appointment to be express or by necessary implication, and the illustrations give examples — a will saying "I appoint C my executor if B will not" appoints B by implication. But where there is no such person able to act, probate is simply not available, however much everyone would prefer it.

Section 232 then covers the gap, and it covers it in three distinct situations: where the deceased made a will but appointed no executor; where the executor appointed is legally incapable or refuses to act, or died before the testator or before proving the will; and where the executor died after proving the will but before administering the whole estate. In each case a universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to them — of the whole estate, or of so much of it as remains unadministered.

What Section 212 requires, and who it does not apply to

Until 20 December 2025 the Indian Succession Act contained two provisions making a grant a precondition to establishing a right in court. Section 213 dealt with wills and was omitted on that date by the Second Schedule to the Repealing and Amending Act, 2025. Section 212 was not touched, and it is now the only one left.

Section 212(1) provides that no right to any part of the property of a person who has died intestate can be established in any court of justice unless letters of administration have first been granted by a court of competent jurisdiction. Read alone that is a wide bar — wider than Section 213 ever was, because it applies to the whole estate rather than to rights under a will.

Sub-section (2) is what makes it narrow in practice. The section does not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi. Between them those categories cover the very large majority of intestacies in India, which is why the ordinary family settling an intestate estate never encounters Section 212 at all.

Two things follow. First, if you have been told that "the law requires letters of administration", the question to ask is which section is meant and whether sub-section (2) applies to this deceased. Second, Section 212 is now the sole remaining trigger for the bar in Section 370(1) on granting a succession certificate — which is why that bar, too, now bites on very few estates.

Who may apply on an intestacy: Sections 218 and 219 in detail

The Act splits the question by personal law, and the two sections are shaped very differently.

Section 218 applies where the deceased died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina, or an exempted person. Administration of the estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such a deceased, would be entitled to the whole or any part of the estate. Where several such persons apply, it is in the discretion of the court to grant it to any one or more of them. Where no such person applies, it may be granted to a creditor of the deceased.

That is a permissive structure rather than an order of priority. It sends the court back to the rules of distribution — for a Hindu, Sections 8 to 15 of the Hindu Succession Act, 1956 — and then leaves the choice among the entitled persons to the court’s discretion. In practice one heir petitions with the written consent of the others, which is faster and avoids the appearance of a contest.

Section 219 applies to everyone outside those classes, and it sets out a detailed order. The widow comes first, unless the court sees cause to exclude her on the ground of a personal disqualification or because she has no interest in the estate — and the illustrations to the section are worth reading, because they show that remarriage is expressly not good cause for exclusion. The court may associate others with her. Where there is no widow, or she is excluded, administration goes to the persons beneficially entitled under the rules of distribution, with a proviso that where the mother of the deceased is among that class she is solely entitled to administration. Those in equal degree of kindred are equally entitled. A surviving husband has the same right in respect of his wife’s estate as a widow has in respect of her husband’s. And where nobody connected by marriage or consanguinity is entitled and willing to act, letters may be granted to a creditor.

• Section 218 is discretionary among the entitled. Section 219 is an order. Do not read one as though it were the other.
• Both end with a creditor. The Act would rather an estate were administered by a creditor than not administered at all.
• The proviso in Section 219(c) surprises families: where the mother is in the class beneficially entitled, she is solely entitled to administration.
• Section 219(g) deals with domicile: where the deceased left property in India, letters are granted according to these rules even if the deceased was domiciled in a country whose succession law differs.

The petition, and what the court will want to see

Where a will is annexed, the petition is under Section 276 and takes the same form as a petition for probate. It must be distinctly written in English or in the language in ordinary use in proceedings before that court, with the will annexed, and it must state the time of the testator’s death, that the writing annexed is the last will and testament, that it was duly executed, and the amount of assets likely to come to the petitioner’s hands. The averment that the petitioner is the executor named in the will is required only where the application is for probate — which is precisely the averment a Section 232 applicant cannot make, and does not have to.

Where there is no will, the petition is under Section 278, and sub-section (1) lists exactly what it must state: the time and place of the deceased’s death; the family or other relatives of the deceased and their respective residences; the right in which the petitioner claims; the amount of assets likely to come to the petitioner’s hands; and — where the application is to the District Judge — that the deceased at the time of death had a fixed place of abode, or had some property, within that judge’s jurisdiction, or, where the application is to a District Delegate, that the deceased had a fixed place of abode within the Delegate’s jurisdiction. Sub-section (2) adds the multi-State requirement.

Two practical points about the assets figure, because it is the one families get wrong. It is the amount likely to come to the petitioner’s hands, and it is what the ad valorem court fee is computed on — so understating it is not a saving, and overstating it is an expensive error. Where the assets are in more than one State, Section 276(3) requires the petition to state the amount in each State and the District Judges within whose jurisdiction they are.

A grant of letters of administration commonly requires an administration bond. Where the court requires one, arranging a surety takes its own time, and it is worth asking about at the outset rather than discovering it at the end.

1. 1Establish the death, with several certified copies of the death certificate.
2. 2Establish whether there is a will. Ask the family, any advocate who may have drafted one, and the Sub-Registrar if there is any chance it was registered.
3. 3If there is a will, identify why probate is unavailable — no executor named, executor predeceased, executor incapable, or executor refuses — because that is the averment the petition turns on.
4. 4Identify the applicant. Under Section 232 it is a universal or residuary legatee; under Sections 218 and 219 it is a person entitled under the rules of distribution, in the order those sections set.
5. 5List every family member and near relative with their addresses. An omitted relative is the commonest reason a grant is later challenged.
6. 6Value the assets likely to come to the petitioner’s hands, and compute the fee on the Court-fees Act in force where the petition will be filed — not on a national figure.
7. 7File under Section 276 with the will annexed, or under Section 278 where there is none.
8. 8Deal with the citations. The court cites those entitled to object, in practice the persons who would take on an intestacy.
9. 9Be ready for an administration bond, with sureties, if the court requires one.
10. 10Take certified copies of the grant. Every institution keeps the one you hand over.

The court fee, and why a national figure would be wrong

The fee is ad valorem on the value of the assets likely to come to the administrator’s hands, and it is charged at the same rate as probate: Article 11 of Schedule I of the Court-fees Act, 1870 covers "probate of a will or letters of administration with or without will annexed" in a single entry.

Under the central Act that is two per cent where the amount or value exceeds ₹1,000 but does not exceed ₹10,000, two and one-half per cent above ₹10,000 up to ₹50,000, and three per cent above ₹50,000. Article 11 also carries a proviso worth knowing: where a succession certificate has already been granted in respect of property in an estate and probate or letters of administration are afterwards granted in respect of the same estate, the fee on the later grant is reduced by the fee paid on the earlier one.

That central schedule does not govern everywhere, and the divergence is not marginal. India Code prints State amendments alongside the central articles, and two of them show the range.

When letters of administration are the wrong instrument

This is the section that saves the most money, because the ad valorem fee is charged on the whole estate and the two alternatives below are charged on far less, or on nothing at all.

Where the intestate estate consists only of debts and securities — a fixed deposit, a bank balance, shares, debentures, bonds, money owed to the deceased — the right instrument is a succession certificate under Part X. It is confined to the assets listed in the petition, so the fee is computed on those alone rather than on the estate; and Section 381 gives the payer a full statutory indemnity, which is the thing a bank is actually buying when it insists on a court document.

Where what is needed is proof of who survived the deceased — for a pension, a provident fund claim, gratuity, arrears of salary, or mutation of the land and municipal records — no court is involved at all. The revenue office issues a legal heir, surviving member or family member certificate, on a small State fee and no court fee.

And where the estate is immovable property that the heirs intend to divide, no grant divides anything. Heirs succeeding together take as tenants-in-common; converting undivided shares into defined property needs a registered partition deed, or registered release deeds where one heir takes an asset and pays the others.

Worked examples