The property may be ancestral or self-acquired property may devolve in two ways i.e., a) By testamentary succession i.e., the deceased died by executing will bequeathing his properties to specific heirs and b) By intestate succession when the deceased died intestate without executing Will or any deeds. The transmission could either be by way of a will or by the operation of law. The Indian Succession Act, 1925, is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindus and Muslims. In this article, we shall study about the Letter of Administration (LOA).
Testamentary Succession:
Testamentary succession or disposition by wills refers to a case when the deceased leaves behind a will and the devolution of property take place as per his wishes expressed in his last will. A will is the expression by a person of wishes which he intends to take effect only at his death. In order to make a valid will, a testator must have a testamentary intention to which he gives deliberate expression to take effect only at his death.
Intestate Succession:
Succession of the person dying without leaving a valid and enforceable Will, is called Intestate Succession. Principles of distribution of assets in this regard are based on personal laws applicable to Deceased. In case of a person other than Hindu or Muslim dying intestate, the Indian Succession Act, 1925 is applicable. If the estate involves only movable assets, a Succession Certificate is applied for. However, if the estate comprises of both immovable and movable assets or only immovable assets then LOA is required from the court to administer the estate of the deceased. Even to operate locker/s of the deceased maintained with banks, LOA is required.
Probate:
According to Section 2(f) of the Indian succession act, 1925, probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. Thus, a probate is a document issued under the seal of the Court and under the signature of a proper official (such as a District Judge or Registrar of a Court), certifying that the original will was proved on a certain date, and to this is attached a certified copy of the will of which probate has been granted.
Letter of Administration:
Letter of Administration is granted to the beneficiaries after they apply to a Court of law having competent jurisdiction. Letter of Administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. It is issued in case when a person dies intestate (without leaving a Will). It gives legal right to the person to administer the estate of a deceased person. In cases when there is not any executor of Will then the beneficiary can apply for a LOA in the court. The LOA cannot be granted to any person who is a minor or is of unsound mind. Neither it can be granted to an association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette by the State Government in this behalf.
Letter of Administration is often confused with terms like Probate and Succession Certificate. The difference between the Succession Certificate and the LOA is that a Succession Certificate is issued for the purpose of movable assets like debts and securities of a deceased person whereas LOA grants the right to administer the estate of a deceased person. The main difference between Probate and LOA is that Probate is granted to an executor nominated under the will. Whereas, if a will does not nominate an executor, the beneficiaries of the deceased will have to file an application for LOA. This Letter of Administration would grant the same administrative rights to the beneficiaries that an executor would have enjoyed. However, if a person dies intestate, then an applicant seeking administrative rights pertaining to the deceased estate files for LOA.
Difference Between Succession Certificate and Letter of Administration:
| Succession Certificate | Letter of Administration |
| Succession certificate is a document issued by a competent court (civil) certifying a rightful person to be the successor of a deceased person. | Letter of Administration is an official court or competent authority document issued for the purpose of giving authority to a person (it is granted) to administer all the estate of a deceased person. |
| Succession Certificate can only be granted to legal heirs. | Letter of Administration can only be granted to those whose name is mentioned in the will (if there is a will) |
| There is no limitation of time period for filing a petition for succession certificate. | Petition for letter of administration can only be filed after 14 days of the death. |
Section 213(1) makes it mandatory for every legatee or executer to obtain a Probate of the will or Letter of Administration with the will before they try to execute a will. Otherwise, an executor or legatee cannot establish any right in a court of law pertaining to the concerned will and any estate mentioned therein. Thus, If they do not obtain probate, they may not be able to assert their rights in a court concerning any estate mentioned in the will.
When does Petition of LOA can be Made?
Under the following circumstances, a request for a Letter of Administration (LOA) can be made:
- When there is no Will;
- When Executor declines or fails to accept executorship within the prescribed time period;
- When no executive of the will is appointed in the Will;
- When executor refuse to act or is legally incapable to do so;
- When the executor dies prior to administration of the estate.
Jurisdiction:
The District Judge, within whose jurisdiction any property, movable or immovable, is situated or the deceased resided, immediately, before his death, shall be having the jurisdiction to try and entertain the Petition for the issue of the Letter of Administration. Letter of Administration is granted to the beneficiaries after they apply to a Court of law having competent jurisdiction. Letter of Administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.
Who can be Appointed as an Administrator?
- letter of administration under Indian succession act section 218 may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased persons property.
- The person being appointed as administrator must be financially solvent and having knowledge of estate law.
Rights of the Administrator:
- Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.
- Administrator is the legal representative for all purposes and all the property of the deceased person is vested in him.
- No other than the person to whom the same may have been granted shall have the power to sue or prosecute any suit, or otherwise act as representative of the deceased.
- No act by the administrator tending to the diminution or damage of the intestate’s estate shall be validated.
Notes:
- Section 234 of the Indian Succession Act, 1925deals with the grant of administration in cases where no executor, nor residuary legatee, nor representative of such legatee exist or declines, is incapable of acting or cannot be found, then the beneficiary would have been entitled to file an application for the Letter of Administration.
- Section 223of the Indian Succession Act, 1925 deals with the person to whom probate or letter of administration cannot be granted. It cannot be granted to a person who is a minor or is of unsound mind. It cannot be even granted to any associations of individuals unless it is a company which satisfies the conditions prescribed in the rules.
- Section 290 of the Indian Succession Act, 1925deals with the grant of letters of administration when it appears to the district judge or district delegate.
- Section 215 ofthe Indian Succession Act, 1925deals with grant of probate or letters of administration in respect of an estate shall be deemed to supersede any certificate previously granted under Part X or under the Succession Certificate Act, 1889 (7 of 1889)1, or Bombay Regulation No. VIII of 1827, in respect of any debts or securities included in the estate.
Documents Required at the Time of Filing the Petition:
- Death Certificate of the testator/deceased.
- Aadhar Card of the testator/deceased.
- Ration Card of testator/deceased.
- Original Will if present.
- List of Legal heirs.
- Aadhar of all legal heirs.
- Documentary proof of the properties testator/deceased.
- If there is Will then documentary proof of the properties mentioned in the Will.
Procedure for Letter of Administration:
A letter of administration of estate is a document that is used to administer an estate after the death of a person. The document typically includes a list of all the assets and liabilities of the deceased, as well as instructions for how to distribute those assets. If the WILL is available, then it must be annexed with the application for letter of administration. Application for letter of administration depends on several factors after death like WILL is available or not and where the person died. Following steps are to be followed for obtaining LOA.
Step 1: Petition for Letter of Administration:
The foremost step while filing a petition is to know about the documentation available with the petitioner. The Petition for LOA should contain following details.
1. Application for letters of administration of estate shall be made by petition distinctly written as aforesaid and stating—
- the time and place of the deceased’s death;
- the family or other relatives of the deceased, and their respective residences;
- the right in which the petitioner claims;
- the amount of assets which are likely to come to the petitioner’s hands;
- when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
- when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
2. Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situated.
Step 2: Payment of Court Fees for LOA:
Evaluation of property is done in the next step in the procedure for the grant of a letter of administration. The court fees depend on the amount/value of assets the court is dealing with.
| Property Value | Court Fee applicable |
| Between 1 lakh and 10 lakh | Two and one-half per cent on such amount or value. |
| Between 10 lakh and 50 lakh | Three and one-quarter per cent on such amount or value. |
| Exceeds 50 lakh | Four per cent on the amount or value. |
Please note that letter of administration for immovable property court fees will be different as per respective state laws. In Mumbai maximum Court fee is capped at Rs. 75,000/-.
Step 3: Notification to all Legal Heirs:
On receipt the Application for letters of administration, the court issues notice to the legal heirs of the deceased to file objections, if any, to grant of letters of administration. In such case if the any of the legal heir having objection can file his/her objection with help of lawyers for will disputes. Alternatively, the court can issue the notice in the newspaper as well for any objections related to grant of LOA, if any. Attorney file his objection in court on WILL of the application is filed for Grant of letters of administration with will annexed and if the court satisfies then it will be converted into Suit.
Step 4: Grant of Letter of Administration:
If no one raises any objection then the court will approve your petition and the court passes the order in favour of the petitioner.
Conclusion:
Probate, Letter of Administration and Succession Certificate are legal documents through which rights pertaining to the estate of the deceased are granted. Probate and Letter of Administration are the primary documents through which administrative rights pertaining to the estate of the deceased are validated Letter of Administration is often confused with terms like Probate and Succession Certificate. The difference between the Succession Certificate and the LOA is that a Succession Certificate is issued for the purpose of movable assets like debts and securities of a deceased person whereas LOA grants the right to administer the estate of a deceased person. The main difference between Probate and LOA is that Probate is granted to an executor nominated under the will. Whereas, if a will does not nominate an executor, the beneficiaries of the deceased will have to file an application for LOA. This Letter of Administration would grant the same administrative rights to the beneficiaries that an executor would have enjoyed. However, if a person dies intestate, then an applicant seeking administrative rights pertaining to the deceased estate files for LOA.
Test Your Understanding:
- What is meant by testamentary succession?
- What is intestate succession?
- What is meant by a ‘Probate’?
- What is meant by the ‘Letter of Administration’?
- Write short note on “Letter of Administration”.
- Distinguish between a succession certificate and the letter of administration.
- When does Petition of LOA can be Made?
- Who can be appointed as an administrator?
- What are the rights of administrator?
- List the documents required at the time of the filing the petition for the letter of administration.
- Explain the procedure for obtaining the letter of administration.
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