Inheritance Law you should be aware of
Inheritance in India and the manner in which property of a deceased person is to be distributed is determined by the law of Succession, in the event that there is no will or equivalent document declaring the deceased personís intent, tells Himanshu Shekhar, Managing Partner, Vipra Legal.
The Hindu Succession Act, 1956 is the law that was passed by the parliament of India in 1956 to amend and codify the law relating to intestate or unwilled succession, among Hindus. It applies to all those who practice the Hindu religion as well as those who fall under the term Hindu within the Indian Legal system, including Buddhists, Jains, and Sikhs. Any property, possessed by a Hindu female, is to be held by her as absolute property and she is given full power to deal with it and dispose off by will as she likes. The Act was amended in 2005 by Hindu Succession (Amendment) Act, 2005.
A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator (the person who prepares a will is known as the testator). It is the official evidence of an executor’s authority. After the death of the person concerned, a proceeding may be initiated in court to determine the validity of the Will that the testator may have created, known as a probate proceeding, which will satisfy the legal requirements. In most cases, during probate, at least one witness is called upon to testify or sign a ‘proof of witness’ affidavit. If the Will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.
For executing the Will, the person must be fully competent, as much as he should not be a minor and should not be a person of unsound mind. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses at least.
Effect of grant of probates: A probate granted by a competent court is proof of the validity of the Will, and the right of the executor named in the Will to represent the estate of the deceased. However, it only establishes the legal character of the Will and the executor and in no way decides upon the manner of distribution of the property, and does not even determine whether the property referred to is in existence.
This law of succession provides for the method of distribution of property in case the deceased passes away without leaving behind a Will. Dying without leaving behind a Will is known as dying intestate.
As a general principle, whenever a Hindu died intestate, then a legal presumption comes into force so that the property gets vested into legal heir automatically as it belongs to Joint Family. The Law has four schedule or categories of legal heirs. First category is direct relatives, second is second line relative and third is of ‘agnate’ that is relatives from father’s side and fourth is ‘cognates’ that is, relatives of mother’s side. If any Hindu dies intestate and without any relatives, then the property gets vested with the State Government under due procedure of Law.
There is no concept of ancestral property by birth in Islamic law. Muslim law recognises that persons may leave behind a will, but a will (unless ratified by all the heirs of the person leaving behind the will) is valid only to the extent of one-third of the deceased’s property. Insofar as it is valid, it is governed by the regular laws applicable to Wills in India.
• A Muslim wife cannot be dispossessed.
• She has to share with other wives if there is more than one wife.
• The widow gets a definite share.
• Mohammedan Law gives the male heirs, the sons, twice the share of the daughters.
Residuaries: The residuaries are those who are entitled to the estate, if any, left after the sharers have received their respective shares. Of course, this is only a broad rule and there are several just and equitable exceptions to this rule.
Failing any Sharers or Residuaries, the next level of relations who would succeed to the estate of a deceased Muslim male or female, are a class of persons known as Distant Kindred.
Before making a claim to any property left by the deceased, one needs to make sure that there are no debts outstanding, in which case they would need to be cleared before any division of the property can be thought of. All the heirs would have to first agree to chalk out a strategy to clear the debt.
In case there is ambiguity in the Will, and it does not match accurately with the total existing assets mentioned in it, legal advice must be sought while arriving at any kind of settlement. Lack of clarity in the will can lead to serious legal complications at a later stage, which can be avoided by working in the beginning itself.
Once the legal ownership of the property for that heir is confirmed, one needs to apply for mutation of the house to local Municipal Authority. It is essential to know that mutation helps in updating government records but it doesn’t confirm ownership. However, it is an essential step in cementing your ownership on the property.
A no-objection certificate from the other heirs is also required in case of multiple heirs. Any challenge to this application for mutation will be referred to the sub divisional magistrate. However, the appeal for dispute must be within 30 days of the mutation order. In case of multiple legal heirs to the property, the mutation document would bear the names of all the heirs.
Once these legal formalities are over then the heir is at liberty to either reside in it or rent it out. He can even sell off the property as he is the sole owner of the house. In case of multiple heirs to the house, it is advisable to mark the division of property among them right at the time of mutation to avoid subsequent complications.