ANCILLARY PROBATE OF WILL: MEANING, PROCEDURE, AND PRACTICAL STEPS

When a testator passes away leaving behind a Will stating assets in more than one jurisdiction, there arises a need for obtaining probate of such a will, generally at the additional jurisdiction as a single probate order may not be sufficient to administer the entire estate. In such cases, ancillary probate becomes necessary. Therefore, an Ancillary probate is an additional legal process that enables the administration of a deceased person’s assets located outside the jurisdiction where the primary probate was granted.
 

Ancillary probate is referred to as an ancillary or a secondary probate proceeding which is initiated in a different jurisdiction where the deceased owned property, apart from the place of their permanent residence or domicile. It is usually required when a Will has already been probated in one jurisdiction (known as the primary or domiciliary probate) but the deceased also owned immovable or significant movable assets elsewhere.

For example, if a person resides in the United States, where he owned movable and immovable properties, however, the said individual also has lets a few assets in India. In such a case, obtaining probate in the US only, may not be sufficient as the US probate may not automatically grant authority to deal with the Indian assets. In such situations, ancillary probate is required in the jurisdiction where additional property is situated.

Ancillary probate is generally required in the following situations:

• The assets of the deceased testator are owned in different countries 
• The Probate of Will has already been obtained from the competent court/authorities in the place of domicile
• It is impertinent to obtain a local order to deal with the assets within the territorial jurisdiction
• Financial institutions or local authorities insist on probate granted by a competent local court

Under Indian law, probate is governed by the Indian Succession Act, 1925. However, where there is a foreign Will or assets situated overseas, it becomes impertinent for the Indian courts to issue a local order confirming the foreign probate order and asserting the genuineness and authenticity of the Will, depending on the facts of the case and applicable law.

1. Probate order obtained in the foreign court.
2. Original Will.
3. Affidavits of the attesting witnesses to the Will.
4. Identification documents of the testator, beneficiaries and legal heirs.
5. Original documents of the assets, both movable (such as passbook etc.) and immovable assets such as title documents, etc. 
6. Death Certificate of the Testator.
7. Details and valuation of the property within the jurisdiction.

The general procedure for obtaining ancillary probate includes:

1. Filing of the Petition along with necessary documents for ancillary probate before the court of competent jurisdiction where the assets are located.
2. Inviting third party objections and issuance of notice to legal heirs or interested parties and examine whether any objections exist.
3. Once the above-mentioned process is concluded, and no objection is raised by any of the parties, the courts upon being satisfied about the genuineness of the will, grant Ancillary Probate.

Without ancillary probate, executors may face legal obstacles in selling, transferring, or managing assets situated in other jurisdictions.

Ancillary probate of a Will is an essential legal mechanism for administering assets spread across multiple jurisdictions. While it may appear procedural, it ensures legality, transparency, and protection of beneficiaries’ interests.