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A Legal Analysis of the Probate (Heirs Certification) Process in Irani

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Abstract

Probate (or Heirs Certification) is a fundamental legal procedure that confirms the rightful heirs of a deceased person and facilitates the legal transfer of assets. This process plays a vital role in resolving inheritance matters, protecting third-party rights, and addressing the decedent’s debts and obligations. This article provides an analytical overview of the legal basis, procedures, and consequences of probate in the Iranian legal system, highlighting key statutes, procedural rules, and practical challenges in judicial practice.

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1. Introduction

Upon a person’s death, their estate, including assets and liabilities, is legally transferred to their heirs. However, for the heirs to enforce or exercise any right over the estate, an official certificate confirming their status as heirs (Enhesar-e-Varasat) must be issued by a competent authority. This certificate is an essential legal document for asserting inheritance claims, distributing the estate, or transferring property.

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2. Nature and Legal Character of the Probate Certificate

The Probate Certificate (Heirs Certification) is a formal judicial declaration that lists the names, legal status, and respective inheritance shares of the deceased’s heirs. According to Article 867 of the Iranian Civil Code, “The estate of the deceased passes to the heirs at the moment of death,” but this transfer is not effective erga omnes without legal confirmation. The certificate serves as proof for administrative and legal actions concerning the decedent’s property.

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3. Legal Foundations

The primary legal sources governing the probate process in Iran include:

• The Law on Non-Contentious Matters (Qanun-e Omur-e Hasbi, enacted 1940), particularly Articles 20, 26, 27, and 36–39

• The Iranian Civil Code (Articles 861–949 on inheritance law)

• The Executive By-Law of Article 37 of the Law on Non-Contentious Matters

• The 1929 Law on Probate Certification

Pursuant to Article 36 of the Law on Non-Contentious Matters, the heirs, executor (wasi), legatee, or creditors of the deceased may file an application for probate.

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4. Procedural Steps for Probate

1. Filing an Application with the Dispute Resolution Council (Shoray-e Hal-e Ekhtelaf) of the last residence of the deceased

2. Submitting Required Documents:

   • Notarized affidavit signed by two witnesses

   • Official death certificate

   • ID documents of the heirs

   • Tax clearance certificate for estates exceeding the prescribed threshold (currently 3 billion Rials)

3. Publication of a Notice in the Official Gazette for non-urgent (complete) probate

4. Judicial Review and verification of submitted information

5. Issuance of the Probate Certificate upon confirmation

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5. Types of Probate Proceedings

• Summary Probate (Enhesar-e-Varasat Mojaz): Used in urgent matters (e.g., insurance claims, blood money), without publication or tax clearance, if the estate value is below a certain threshold

• Complete (Formal) Probate: Requires public notice and tax clearance; mandatory for property transfers and court proceedings involving the estate

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6. Legal Effects of the Probate Certificate

• Confirms the legal heirship and proportions of inheritance

• Used in estate partition, sale, or division

• Required for transfer of title in land registries or official deed offices

• May be challenged and invalidated if new heirs emerge or if fraudulent affidavits were used

The certificate has declarative value and does not create new rights but confirms pre-existing inheritance rights. Nevertheless, it is legally binding on administrative authorities.

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7. Practical Challenges

• Concealment of heirs or false reporting of kinship

• Ambiguities regarding the decedent’s last residence

• Issuance of conflicting certificates by different councils

• Procedural inconsistencies in electronic filing systems

• Lack of coordination between councils and registry offices

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8. Analysis of Judicial Practice

According to prevailing judicial policy and circulars from the Judiciary, Dispute Resolution Councils only have jurisdiction where no dispute over kinship or testamentary matters exists. In contested cases (e.g., disputes over legitimacy, wills, or unknown heirs), jurisdiction shifts to the Family Court.

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9. Conclusion and Recommendations

The probate certificate is an essential legal instrument in Iran’s inheritance law, but its issuance process needs more transparency and procedural integrity. To improve the process, the following are recommended:

• Amend executive regulations to streamline procedures

• Establish a centralized electronic system for inheritance data

• Impose stricter verification for witness affidavits

• Improve coordination between probate authorities, tax offices, and property registries

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References

1. Law on Non-Contentious Matters (Qanun-e Omur-e Hasbi)

2. Iranian Civil Code

3. Executive By-law of Article 37 of the Law on Non-Contentious Matters

4. Supreme Court Precedents and Judicial Circulars

5. Nasser Katouzian, General Rules of Inheritance, Mizan Publishing

6. Dr. Shams, Civil Procedure Code, Vol. I & II