A mother dies leaving a last will. In it, she names an executor and states how her house, land and other property should be distributed. The family now wants to know what happens next. In Sri Lanka, the executor may need to obtain probate through the appropriate District Court. Probate is the formal grant through which the will is proved and the executor's authority is recognised.
Step 1: Find the Original Last Will
After a mother dies leaving a will, the family should locate the original document. It may be held by a notary, lawyer, relative or another custodian. Section 516 of the Civil Procedure Code requires a person holding or finding it after death to produce it to the proper District Court as soon as reasonably possible, with the required information.
The accompanying affidavit and information about the death and estate should be prepared as required. A family member holding the will should not simply leave it in a drawer indefinitely.
Step 2: Identify the Executor
The will normally names an executor to administer the estate. If that person cannot or will not act, an eligible person may seek letters of administration with the will annexed.
Step 3: Find the Correct District Court
Under the Code, jurisdiction may relate to where the deceased lived at death, where the executor lives or where land belonging to the estate is situated. The correct court must be identified before filing.
Step 4: Prepare the Application
Section 524 requires a petition and affidavit giving relevant details of the will, estate property, heirs and the applicant's entitlement, with evidence of proper execution. The section specifies a period of three months from the date the will is found for the application. If there has been delay, obtain legal advice on its implications.
A petition is a formal request to court; an affidavit is a sworn written statement. The application should identify the estate and relevant heirs to the applicant's knowledge.
Step 5: Publish the Required Notice
Section 529 requires a prescribed newspaper notice in Sinhala, Tamil and English on two separate occasions in consecutive months. Interested persons can object. The objection date is set within the statutory period of 60–67 days from the first publication. Probate therefore cannot ordinarily be completed immediately after the petition is filed.
Step 6: What If Nobody Objects?
If no objections are made, the court considers the evidence. Where it is satisfied, it may declare the will proved and direct the grant of probate under section 531. The legal requirements must still be met even in an unopposed application.
Step 7: What If Someone Objects?
Objections may concern alleged forgery, lack of capacity, improper execution or the applicant's entitlement. The court may hold an inquiry. An objection alone does not prove the will invalid.
Step 8: Take the Oath and File the Inventory
Following the relevant order, section 539 requires the executor's prescribed oath within fifteen days and an inventory and valuation within one month after the oath. The grant issues in accordance with the statutory procedure.
The inventory and valuation record the property subject to administration. They are not mere formalities; the executor must account for their handling of the estate as required by law.
Step 9: Administer the Estate
The executor must protect and collect assets, address valid debts, distribute according to the will and maintain records. Section 551 also contains accounting requirements. Probate is authority to administer, not personal ownership.
The executor may also need to complete land-registration or other asset-transfer documents after addressing valid liabilities. The grant is not necessarily the end of the process.
What If the Original Will Is Missing?
Section 540 provides for limited grants in certain exceptional circumstances, including particular lost-will situations. A photocopy should not automatically be treated as sufficient evidence without examining the law and facts.
What If the Executor Lives Overseas?
The Code contains provisions under which a duly constituted attorney or other eligible person may act in particular circumstances. The power of attorney and court requirements must be examined.
How Long Does Probate Take?
There is no single timeframe. Publication, evidence, objections and court scheduling affect the process. A contested will may take substantially longer than a properly documented and unopposed application.
Conclusion
Probate requires production of the will, a court application, prescribed notices, an order, and compliance with oath and inventory requirements. Preparation helps avoid preventable delays.
Legal References
- Civil Procedure Code, sections 516–524, 529–541 and 551
Sinhala edition
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This article is for general legal information and public education, not legal advice for a particular matter. Reading does not create an Attorney-at-Law/client relationship.