- There are two main acts which govern the succession in India:The Hindu Succession Act, 1956 and the Indian Succession Act, 1925.
- Probate is certified by the court of competent jurisdiction which is a certified legal document with the seal of court.
- Laws for succession and inheritance are also governed by personal laws which come under the Indian Succession Act, 1925.
- After the amendment in 2005, the daughters are also entitled to equal share in her father’s ancestral property.
Transfer of property after the death of parents is a practice of inheritance and succession. There are various laws to govern this practice of succession and inheritance. The inheritance of the property is also based on the religion of the individual. There are personal laws to govern the inheritance and succession of property. Two main Acts to govern the succession laws are - The Hindu Succession Act, 1956 and the Indian Succession Act, 1925.
As the real estate has high value in today’s world, the successors of the deceased person shall secure the estate of the deceased person after his death. The legal heirs of the deceased can claim his assets by following the procedure as per law. Legal formalities for transferring the property may differ as per the number of legal heirs, the Act by which it is governed, the type of property, the will etc.
The legal procedure will change according to the circumstances.If the deceased person died intestate (without will), there will be more legal formalities as compared to when the deceased person makes a will before dying.
TRANSFER OF PROPERTY WITH WILL
A will is defined in Section 63 of the Indian Succession Act, 1925. It is a legal document or a kind of declaration of which indicates what a person wants. A will contains the details about the person to whom the assets of the owner shall be transferred. It can be one person or more than one; it depends totally upon the owner of the estate. A will can be made by a person of sound mind and who is not a minor i.e., who is above 18 years of age.
After the death of the owner of the assets, the court shall check the authenticity of the will and shall call the witnesses to check the authenticity of the will. The witnesses are required while making a will. A will can be registered also; however that doesn’t mean that an unregistered will is not valid. Both are valid documents. If a will is made, and before dying, the owner again makes a different will, then the previous will gets revoked even if it is registered. The latest will shall be valid and binding.
TRANSFER OF PROPERTY WITHOUT WILL
In such case, where the owner dies intestate (without will), the rule of succession shall come into picture. Then, the assets of the deceased shall be transferred according to the order of the court and that shall be governed by any one of two Acts (The Hindu Succession Act 1956 and the Indian Succession Act 1925) depending on the situation.
Probate has been defined under the Indian Succession Act, 1925. Probate means a certified copy of will sealed by the court of competent jurisdiction. The person who makes the will mentions everything in the will to who he wants to give his assets and the share. There can be more than one person name mentioned in the will depends upon the owner of the assets. The probate is a method to get the will certified under the seal of the court. A probate authenticates the will by certifying it. A probate is the proof that the will was executed validly and is genuine last wish of the deceased.
TYPES OF PROPERTY
Ancestral property – This type of property is inherited by the ancestors. For a property to be ancestral, it should be inherited by four generations. Every legal heir has the right in the ancestral property. After the amendment of 2005,even the married daughters have equal share in ancestral property.
Self-acquired property – When a person obtains a property on his own and not inherited by ancestors, then that property is known as self-acquired property.
TRANSFER OF PROPERTY UNDER HINDU LAW (HINDU MALE)
Section 8 to 13 lays down the rules for succession after the death of Hindu male who dies intestate. The heirs of the Hindu male are divided into four categories.
Class 1 –Sons, daughters, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter, widow of a pre-deceased son, son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son, son of a predeceased daughter of a predeceased daughter, daughter of a deceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, daughter of a predeceased daughter of predeceased son.
Class 2 – Father, son’s daughter’s son, son’s daughter’s daughter, brother, sister, daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter, brother’s son, sister’s son, brother’s daughter, sister’s daughter, father’s father, father’s mother, father’s widow, brother’s widow, father’s brother, father’s sister, mother’s father, mother’s mother, mother’s brother, mother’s sister.
Class 3 are agnates and Class 4 are cognates.
TRANSFER OF PROPERTY OF HINDU FEMALE
The Hindu Succession Act provides three categories of legal heirs of the Hindu female who dies intestate depending upon the acquisition of the assets. The legal heirs are decided on the grounds of three heads.
- Property inherited by a female from her father and mother;
- Property inherited by a female from her husband or her father-in-law; or
- Property obtained by her from any other source, by inheritance or otherwise.
According to Section 15(1) of Hindu Succession Act, if property is acquired from other sources, then the legal heirs shall be as follows.
- Son, daughter, husband, son, and daughter of a predeceased son and son and daughter of a predeceased daughter.
- Heirs of husband.
- Father and mother.
- Heirs of father.
- Heirs of mother.
Property inherited from father and mother:
- Sons, daughters, sons, and daughters of a predeceased son and sons and daughters of a predeceased daughter.
- Heirs of father.
Property inherited from husband or father-in-law:
- Sons, daughters, sons, and daughters of predeceased sons, and sons and daughters of predeceased daughters.
- Heirs of the husband.
TRANSFER OF PROPERTY UNDER MUSLIM LAW
In case of a Muslim dying intestate, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied.
Legal heirs of Muslim dying intestate:
Husband, wives, sons, daughters, grandsons, father, mother, grandfather, paternal grandmother, maternal grandmother, full brothers, full sisters, paternal brothers, paternal sisters, maternal brothers, maternal sisters, full nephews, paternal nephews and many more.
TRANSFER OF PROPERTY UNDER CHRISTIAN LAW
Christian laws of succession are governed by the Indian Succession Act, 1925.
Legal heirs of Christian dying intestate:
Widow, daughter, son, mother, father, sister, brother, direct blood line, as between a son and his father, grandfather and great-grandfather, and so on in the direct increasing blood line; or between a son and his son, grandson, great- grandson and so on in the decreasing blood line.
TRANSFER OF PROPERTY UNDER PARSI LAW
Parsi succession laws are governed by the Indian Succession Act, 1925.
Legal heirs of Parsi dying intestate:
Both mother and father, both sisters and brothers, both paternal as well as maternal grandparents, children of both maternal and paternal grandparents and their lineal descendants, maternal and paternal grandparent’s parents, maternal and paternal grandparent’sparent’s children and their lineal descendants.
WHAT IS A LEGAL HEIR CERTIFICATE?
A legal heir certificate is a document which helps an individual to prove themselves as the righteous heir of the deceased person and to prove the legitimate relationship between the individual and the deceased person. The person having the legal heir certificate can claim the assets and liabilities of the deceased person. After the demise of a person, as soon as the death certificate is obtained, his/her righteous legal heir can apply for legal heir certificate. The legal heir can hire a lawyer to draft and register the legal heir certificate.
HOW TO GET A LEGAL HEIR CERTIFICATE?
- After obtaining the death certificate from the corporation/municipality office of the deceased person, one can apply for obtaining the legal heir certificate.
- The legitimate heir of the deceased person needs to visit the respective area’s taluka tehsildar’s office or corporation/municipality office. The heir can ask for the application form to obtain legal heir certificate.
- After filling the form, the heir can submit it in the tehsildar’s office or municipality office or he/she can hire a lawyer and the lawyer can submit the application form in the district civil court on the heir’s behalf.
- The legitimate heir of the deceased person needs to attach necessary documents with the application form proving the relationship between him/her and the deceased person.
DOCUMENTS REQUIRED FOR LEGAL HEIR CERTIFICATE:
- Application form – filled with accurate information and signed.
- Applicant’s identity or address proof- Identity proof can be proved by the applicant’s Aadhar Card, Driving License, Voter ID Card, Passport, or any other Identity Card issued by the Government of India. Address proof can be proved by any acceptable ID proof or any gas bill, telephone or mobile bill, passbook, etc.
- Death certificate of the deceased person- It can be obtained from the corporation/ municipality office.
- Proof of Date of Birth of all legal heirs- It can be proved by submitting a copy of a PAN Card, Passport, Birth Certificate, School Transfer or Leaving Certificate, etc.
- Address proof of the deceased person.
- A stamped and notarized affidavit.
INHERITANCE RIGHTS OF CHILDREN IN INDIA
Under the Indian Succession Act, the son has the right in his father and grandfather’s property since birth. The son has equal right in his grandfather’s ancestral property equal to his father’s right. In case where the father has self-acquired property and he dies intestate the son of Class 1 legal heir shall have equal right in father’s property as his mother and sister.
However, the illegitimate son does not have right in his father’s property. The child in mother’s womb gets the right in his father’s property even if his father died intestate.
INHERITANCE RIGHTS OF DAUGHTERS IN INDIA
Before 2005, there were no laws for the daughters in their father’s property. Only unmarried daughters had the right in the ancestral property of father. After the amendment of 2005 in a case, a daughter was granted equal rights and duties in her father’s ancestral property, same as the son’s share in his father’s property.
If the father has self-acquired property or separate property and he dies intestate, then the daughter shall also have equal share in father’s property as the other sharers.
INHERITENCE RIGHTS OF GRANDCHILDREN IN INDIA
If the property is ancestral property, then every grandson and granddaughter shall have equal right in the ancestral property as of their father.
If it is self-acquired or separate property of the grandfather, then the grandson shall have the right only after the death of his father.
INHERITANCE RIGHTS OF ADOPTED CHILD IN INDIA
Inheritance rights of the adopted child are same as the natural born child in India.
After the demise of the person,the legal heirs should actually have a look that along with the assets, whether there are any liabilities. Inheriting doesn’t mean only the assets but the liabilities too. The successors need to ensure that there is no debt with the property or the assets of the deceased. If there is, they need to pay off the liabilities and the debts too. Once the court decides the legal heirs of the deceased person, then the legal heirs shall get the property transferred in their name. Inheriting the property is not the only thing the legal heirs need; they should get the property mutated also. They must register for the mutation (change of ownership) in their own name. After acquiring the property, the legal heir can settle in, lend it or can sell the property.