Probate no longer mandatory: When skipping court approval can backfire

The government’s decision to remove the mandatory requirement of probate for certain wills has simplified succession procedures on paper. However, legal and estate-planning experts caution that voluntary probate still plays a critical role in many real-world situations, particularly where disputes, complex assets, or institutional checks are involved.

 

Probate is a legal process where a court formally recognises a will’s validity and an executor’s authority to distribute the estate.

 

What has changed and what has not

The 2025 amendment removes the compulsory probate requirement that earlier applied to wills made by Hindus, Buddhists, Sikhs, Jains and Parsis in Mumbai, Kolkata and Chennai. According to Shraddha Nileshwar, head-- will and estate planning at 1 Finance, probate was never mandatory in most other parts of India, where families could always choose whether to seek court validation. She notes that the relaxation does not apply to Christians in these cities, whose wills still require probate, nor does it affect Muslims, who remain governed by Muslim Personal Law.

 

 

When voluntary probate still makes sense

Voluntary probate continues to be a practical safeguard in several situations.

 

Bijal Ajinkya, partner at Khaitan & Co, says probate becomes important where disputes are likely, particularly when heirs who would otherwise inherit under intestate succession are excluded by a will. It is also commonly sought where the testator or beneficiaries are non-residents, or where Indian wills need validation for overseas assets.

 

Sreepriya NS, chief executive officer at Entrust Family Office, adds that housing societies, redevelopment authorities and buyers often insist on probate to avoid future title disputes. For executors, probate also acts as statutory protection, limiting personal liability if the will is challenged later.

 

Risks of skipping probate

While lawful in many cases, skipping probate can create long-term risks. Ajinkya points out that without probate, excluded heirs may challenge the will years later, claiming lack of knowledge. Probate proceedings involve public notice, which helps close the door on such future claims.

 

Advocate Mayank Arora, partner at Chambers of Bharat Chugh, stresses that probate proceedings are “in rem”, meaning once granted, they bind the world at large. Avoiding probate in contentious families, he warns, often postpones disputes until evidence weakens and witnesses become unavailable.

 

What this means for middle-class families

For middle-class families, the immediate benefit is lower cost and faster administration in simple, undisputed estates. However, Nileshwar cautions that this also raises the bar for drafting wills. Without early judicial scrutiny, poorly worded or inconsistent wills are more likely to trigger disputes later.

 

Are alternatives gaining relevance?

Private trusts and family arrangements are seeing renewed interest, though they are not universal solutions. Ajinkya notes that trusts, as lifetime transfers, often provide stronger insulation from disputes than wills. Sreepriya NS adds that trusts are best suited for families with dependants, business interests or cross-border assets, while simple estates may not justify the compliance cost.

 

The consensus among experts is clear, probate is no longer automatic, but neither is it obsolete. Whether to seek it voluntarily now depends on the family structure, asset complexity and the level of certainty heirs wish to secure upfront.