Probate of a will: no longer required, and when it is still worth having

What changed on 20 December 2025?

Almost everything written about probate in India, including everything that currently ranks for the question, describes a rule that was repealed. It is worth setting out precisely what the rule was, what happened to it, and — just as important — what did not change with it.

The old position. Section 213(1) of the Indian Succession Act, 1925 provided that no right as executor or legatee could be established in any court of justice unless a court of competent jurisdiction in India had granted probate of the will under which the right was claimed, or letters of administration with the will annexed. Sub-section (2) then confined that bar sharply: it did not apply at all to wills made by Muhammadans or, following the Kerala amendment, to Indian Christians; for a Hindu, Buddhist, Sikh or Jain it applied only to wills within clauses (a) and (b) of Section 57 — broadly, wills made in the territories historically subject to the Lieutenant-Governor of Bengal or within the ordinary original civil jurisdiction of the High Courts at Madras and Bombay, and wills made elsewhere so far as they related to immovable property in those areas; and for a Parsi dying after the 1962 amendment it applied within the original civil jurisdictions of the Calcutta, Madras and Bombay High Courts. That is where "probate is compulsory in Mumbai, Chennai and Kolkata" came from.

What happened. The Repealing and Amending Act, 2025 — Act No. 37 of 2025 — received the President’s assent on 20 December 2025. Its section 3 gives effect to the Second Schedule, and the Second Schedule, against the entry for the Indian Succession Act, 1925, provides four things: in section 3(1) the figure ", 213" shall be omitted; section 213 shall be omitted; in section 370(1) the words "or section 213 to be established by letters of administration or probate" shall be substituted by "to be established by letters of administration"; and in section 370(2), clause (b) shall be omitted. Section 1 of the 2025 Act contains only a short title and no separate commencement provision, so the Act took effect on the day it received assent.

The practical effect. There is now no provision in the Indian Succession Act, 1925 requiring probate or letters of administration before an executor or legatee can establish a right under a will. The old distinctions the section drew — by religion, and by where the will was made or the property lies — have gone with it, which was the stated object of the amendment. A will in Mumbai, Chennai or Kolkata is in the same position as a will in Jaipur.

Section 57 has not gone anywhere, and it still matters — just not for this. It is Section 57 that applies the Part VI provisions on wills to Hindus, Buddhists, Sikhs and Jains at all, and its proviso is what stops marriage from revoking such a will. Any page that treats Section 57 as spent because Section 213 is gone has overcorrected.

The bar that survived: Section 212, and why it matters less than it looks

Section 213 was one of a pair. Its neighbour, Section 212, was left alone by the 2025 Act, and it is worth understanding because it is the only remaining provision of its kind.

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. On its face that is a wider bar than Section 213 ever was, because it is about the whole estate on an intestacy rather than about 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 families settling an ordinary intestate estate never encounter Section 212 at all.

Two consequences follow, and they are the reason this section is on the page. First, Section 212 is now the only place in the Act where a grant is a statutory precondition to establishing a right — so a reader who has been told "the law requires letters of administration" should be asked which section is meant, and whether sub-section (2) applies. Second, the 2025 amendment to Section 370(1) makes Section 212 the sole remaining trigger for the bar on granting a succession certificate: a certificate is now refused only for a debt or security to which a right is required by Section 212 to be established by letters of administration.

Probate is not compulsory. Should you take it anyway?

Frequently, yes — and since 20 December 2025 this is the only question left. Probate is a court order that the will is the last valid will of the deceased and that the executor has authority under it. Once it exists, a bank, a registrar, a housing society and a buyer’s advocate all stop asking the questions they would otherwise ask, because the question has been decided. Nothing in the repeal weakened that; what the repeal removed was the compulsion, not the value.

The counter-argument is the fee, which is a percentage of the estate, and the time. So the sensible way to make the decision is to ask what problem you are anticipating.

Who may apply, and what happens when there is no executor

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 to the section give examples — a will saying "I appoint C my executor if B will not" appoints B by implication.

That rule has a consequence people do not expect. A will with no executor named cannot be probated at all. Nor can one whose executor has died before the testator, or has died after proving the will but before administering the whole estate, or is legally incapable, or simply refuses to act.

What happens then is not that the will fails. Section 232 provides that where the deceased has made a will but appointed no executor, or appointed an executor who is legally incapable or refuses to act or has died before the testator or before proving the will, or where the executor dies after proving but before administering the whole estate, 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 is unadministered. And Section 232 is not the only door. Where the executor renounces or fails to accept within the time limited, Section 231 lets the will be proved and the grant made to the person who would be entitled to administration on an intestacy. Where there is no residuary legatee or representative of one able to act, Section 234 admits a person entitled on an intestacy, any other legatee having a beneficial interest, or a creditor — so a will with only specific gifts still has a route.

That is why the two grants sit together on this page. They are not alternatives you choose between; which one you apply for is decided by whether there is an executor able and willing to act.

The no-will counterpart: letters of administration on an intestacy

Where there is no will at all, the corresponding grant is letters of administration simpliciter, and the Act says who may have them. The rule differs depending on the personal law of the deceased, which is why the two sections sit next to each other.

Section 218 applies where the deceased died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jain, or an exempted person. Administration may be granted to any person who, according to the rules for the distribution of the estate applicable to such a deceased, would be entitled to the whole or any part of the estate. Where several such persons apply, it is in the court’s discretion 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.

Section 219 applies to everyone else, and it sets out a detailed order: the widow 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; the court may associate others with her; where there is no widow or she is excluded, the persons beneficially entitled under the rules for distribution of an intestate’s estate, 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.

What the petition contains, and what the court will want to see

Section 276 sets out the requirements. The application is by a petition, distinctly written in English or in the language in ordinary use in proceedings before that court, with the will annexed — or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft or statement of its contents.

The petition must state the time of the testator’s death; that the writing annexed is the testator’s last will and testament; that it was duly executed; the amount of assets likely to come to the petitioner’s hands; and, where the application is for probate, that the petitioner is the executor named in the will.

Sub-section (2) adds two more. Where the application is to the District Judge, the petition must state that the deceased at the time of death had a fixed place of abode, or had some property, within the judge’s jurisdiction. Where it is to a District Delegate, that the deceased had a fixed place of abode within the Delegate’s jurisdiction.

Sub-section (3) deals with assets in more than one State: where the application is to the District Judge and any part of the assets likely to come to the petitioner’s hands is in another State, the petition must state the amount of assets in each State and the District Judges within whose jurisdiction they are.

The averment that repays the most care is that the will "was duly executed". That is a reference to Section 63, and it is the point on which contested probate proceedings are won and lost.

1. 1The time of the testator’s death — taken from the death certificate.
2. 2That the writing annexed is the last will and testament of the deceased. Where an earlier will exists, this is the averment that has to deal with it.
3. 3That the will was duly executed — signed by the testator, and attested by two or more witnesses in the manner Section 63 requires.
4. 4The amount of assets likely to come to the petitioner’s hands. This is what the ad valorem court fee is computed on.
5. 5For probate, that the petitioner is the executor named in the will.
6. 6That the deceased had a fixed place of abode, or property, within the jurisdiction of the court applied to.
7. 7Where assets are in more than one State, the amount in each and the District Judges concerned.

How a will is proved: Section 63, and the witness who has to be found

A will is a document required by law to be attested, and the law of evidence treats such documents specially. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 — which carries forward what was Section 68 of the Indian Evidence Act, 1872 — provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

That single rule is why the attestation clause in a will matters so much more than its elegant drafting. Section 63 of the Indian Succession Act requires that the testator sign or affix a mark to the will, or that it be signed by some other person in the testator’s presence and by their direction; that the signature be so placed that it appears to have been intended to give effect to the writing as a will; and that the will be attested by two or more witnesses, each of whom has seen the testator sign or affix a mark, or has seen some other person sign in the testator’s presence and by their direction, or has received from the testator a personal acknowledgment of the signature — and each of whom has signed the will in the presence of the testator.

Two details in Section 63(c) are commonly missed. It is not necessary that more than one witness be present at the same time. And no particular form of attestation is necessary. But each witness must sign in the presence of the testator, and that requirement is not relaxed.

Where no attesting witness can be found, the position is not hopeless. Section 68 of the Bharatiya Sakshya Adhiniyam deals with proof where no attesting witness is found, but a case that reaches that section is a much harder case than one where a witness walks into the box. Which is the practical argument for taking probate while the witnesses are still available, and for choosing witnesses who are younger than the testator.

What happens when the will is contested

An uncontested probate proceeding is essentially administrative: the petition is filed, citations issue to those entitled to be cited, the attesting witness proves execution, and the grant is made. A contested one is a trial, with pleadings, issues, evidence and cross-examination, and it takes years rather than months.

What turns one into the other is fairly predictable. The grounds an objector actually runs are few.

• Want of due execution — that the will was not signed and attested as Section 63 requires. This is the technical ground, and it succeeds more often than people expect because attestation is done casually.
• Want of testamentary capacity — that the testator was not of sound mind. Section 59 provides that every person of sound mind not being a minor may dispose of property by will, and its explanations deal with intervals of lucidity, and with intoxication or illness that leaves a person not knowing what they are doing.
• Fraud, coercion or importunity — Section 61 makes void a will, or any part of one, whose making was caused by fraud or coercion, or by such importunity as takes away the free agency of the testator. The illustrations to that section are worth reading: persuasion is not coercion, and flattery is not fraud, but a will dictated by someone who controls the testator is invalid.
• Suspicious circumstances — not a statutory ground but a well-established approach: where the circumstances surrounding execution excite suspicion, the person propounding the will must remove that suspicion. A will signed shortly before death, in favour of the person who arranged its drafting, and unknown to the rest of the family, is the classic case.
• A later will — Section 70 provides that an unprivileged will may be revoked by marriage, by another will or codicil, by a writing declaring an intention to revoke executed like a will, or by burning, tearing or otherwise destroying it by the testator or by someone in the testator’s presence and by their direction, with the intention of revoking it.

Proceedings already on foot on 20 December 2025

Two questions arise for anyone who was already in court when Section 213 went, and they have different answers. Grants already made are not disturbed. A probate or letters of administration granted before that date remains a grant, with the effect Sections 227 and 273 give it; nothing in the 2025 Act touches it, and the omission of Section 213 has nothing to say about a grant that already exists.

The harder question is the pending proceeding — a probate petition filed but not decided, or a civil suit in which the defence was that the plaintiff cannot establish a right under the will without a grant. This page states what the statute says and what has and has not been decided, because the honest answer at the date of this review is that the Supreme Court has not ruled on it.

Start with the Act itself, which is where most commentary does not start. Section 4 of the Repealing and Amending Act, 2025 is a savings section, and it applies to the whole Act rather than only to the outright repeals in the First Schedule. It provides that "this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof", and it continues: "nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure". Those are the words that have to be construed, and the second limb is awkward for the argument that a merely procedural change must operate at once, because it saves procedure expressly.

Against that stands the argument that Section 213 created no right and extinguished none — it regulated only the mode of asserting a right in court — so that a party who has not yet obtained a grant has no accrued right or liability for Section 4 or for Section 6 of the General Clauses Act, 1897 to preserve, and the bar simply ceases to be available as an objection from the date of the omission. That is the view taken in most of the post-repeal commentary published during 2026.

There is a further layer, and it is the reason this cannot be settled from first principles. Section 6 of the General Clauses Act speaks of a "repeal", and the Constitution Bench decisions in Rayala Corporation v. Director of Enforcement and Kolhapur Canesugar Works Ltd. v. Union of India drew a distinction between a repeal and an omission, holding that Section 6 does not apply to an omission. Fibre Boards (P) Ltd. v. CIT later cast doubt on that distinction. Section 213 was, in terms, omitted. Which line of authority governs is not a question a website can answer.

What follows practically is narrow and it is worth stating plainly. If you are the petitioner in a pending probate petition and you no longer need the grant, the question is whether to withdraw — and the court fee already paid is usually the deciding factor rather than the law. If you are relying on a will in a pending suit and the other side has pleaded Section 213, the point is now arguable both ways and is worth arguing rather than conceding. If you are being told confidently, either way, what the omission does to your pending matter, ask which decision that is based on.

Registration is not probate, and neither one substitutes for the other

These two are confused constantly, so it is worth separating them completely.

Registration of a will is optional. Section 18 of the Registration Act, 1908 lists wills among the documents of which registration is optional — as against Section 17, which lists the documents whose registration is compulsory. A will is valid whether or not it is registered, and an unregistered will is not weaker as a matter of law.

What registration does buy is practical. Section 40 of the Registration Act allows the testator, or after their death any person claiming as executor or otherwise under a will, to present it for registration, and Section 41 governs its registration. Registration creates a contemporaneous official record that a will in those terms existed on a particular date and was presented by the testator, and it puts a copy in an office where an interested family member cannot reach it — copies given under Section 57 are signed and sealed by the registering officer and are admissible for proving the contents of the original. It does not make the original impossible to lose: the original comes back to the person who presented it, and can go missing like any other document. What it does is make the loss survivable.

Probate is a different thing entirely: a court order, after a judicial proceeding, that this is the last valid will. Registration is an office of record accepting a document. A registered will can still be challenged for want of capacity or for coercion; a probated will has already survived the challenge.

Worked examples