When an NRI or OCI card holder's parent, relative or testator dies in India having left a Will, the process of proving that Will in a court of law and obtaining authority to administer the estate is called probate. In Kerala, probate proceedings are governed by the Indian Succession Act, 1925 — which applies to Christians, Parsis and Jews — and by the personal laws applicable to Hindus and Muslims. Understanding when probate is compulsory, when it is optional, and how the process unfolds in Kerala courts is essential for any NRI managing the estate of a deceased family member.
Probate in Kerala — When It Is Required and How to Apply
Probate is the judicial process by which a court certifies the validity of a Will and grants authority to the executor named in the Will to administer the estate. In India, probate is governed by the Indian Succession Act, 1925.
When Is Probate Compulsory in Kerala
Probate is compulsory in Kerala only for Wills of Christians and Parsis (and others governed by the Indian Succession Act) where the Will relates to immovable property in certain territories specified under Section 57 of the Act. For Hindus, probate of a Will is not compulsory — but is increasingly advisable where the Will is likely to be disputed or where institutions insist on probate before accepting the Will.
The Supreme Court has held that a probated Will is conclusive evidence of its validity and cannot be challenged in subsequent proceedings (except in very limited circumstances). Where a Will has not been probated, it can be challenged on grounds of forgery, undue influence, or lack of testamentary capacity at any time.
Application Process
The application for probate is filed before the District Court (or the High Court, in certain cases) having jurisdiction over the place where the testator resided at the time of death. The petition must be accompanied by the original Will, the death certificate, and an affidavit by the executor. The court issues a citation calling for objections, which is published in a local newspaper. If no objection is received, the court proceeds to grant probate — typically within 3–6 months where the Will is uncontested.
NRI Executors and Remote Administration
An NRI named as executor in a Kerala Will can apply for probate through an advocate in Kerala holding a valid Power of Attorney. The executor is not required to be personally present in court for an uncontested probate petition. Once probate is granted, the executor has the legal authority to administer and distribute the estate in accordance with the Will.
For detailed guidance on this topic specific to your circumstances, the office is available at luka@lukeandluka.in or +91 96057 61330, Monday to Friday, 10:00 AM to 5:30 PM IST. Remote consultations — by video call, WhatsApp or email — are available for NRIs and OCI holders in all time zones.