successsion certficate and missing class-1 legal heir
AVINASH MALHARRAO.ABHYANKAR
(Querist) 16 October 2015
This query is : Resolved
My brother X expired. He was a govt servant. After his retirement he deposited all his savings in fixed deposit and nominated his niece as nominee.
Expired brother x has one younger brother,one elder brother,and one younger sister who have survived.
The Nominee's father and mother expired and she has no brothers or sisters.
in the hospital expired brother stated to nominee/niece that he has kept fixed deposit and has nominated her,which can be used for her life,marriage and social security in presence of younger brother of X.and asked younger brother to give the bag and key for giving Fixed deposit receipt to her/niece. However the FD receipt was in elder sister's house. After 2 days brother x expired. sister did not give FD receipt to Nominee. Therefore Nominee on the basis of xerox copy which she brought & shown to decased person to confirm the same.Deceased brother told her that in case no original receipt is found obtain duplicate from bank and encah the FDamount for her life.
The surviving sisters are seeking their claim as Class-2 heirs. while brother do not want to party to sucession certificate considering it as a Gift under section 191 of Hindu succession Act 1925.
Further it was observed that in one of Insurance document/Certificate the expired person has nominated y person indicating relation ship as spouse.so it appears that X who has expired was married which is not known to either is own surviving sister or brothers. It is also not understood whether the spouse of deceased person is alive or dead. Therefore what i feel it is not possible to obtain Class-2 Legal heir succession certficate.The deceased person as per our knowledge was staying in Oldage Home at various places. Please advise what Nominee has to do? and surviving Brother & sisters has to do if due share is to be claimed from Nominee? What are legal procedures.
Kumar Doab
(Expert) 17 October 2015
It is believed that you are Hindu.
Nominee can stake the claim on payment of proceeds and bank can discharge its responsibility by making the payment.................until or unless there is a order from court to block the payment.
Since original receipt is not available inquire from bank what would be the formalities.
Nominee is the just the hand to receive/trustee and has to distribute the proceeds to successors/Legal heirs.
Nomination is not gift.
ClassII legal heirs shall come into picture only if ClassI legal heirs are not present.
There is a doubt on presence of ClassI legal heir.
The matter may be discussed in person with an able lawyer.
P. Venu
(Expert) 17 October 2015
A nominee is only a trustee on behalf of the legal heirs, nothing more!
By the way, who has received the retirement benefits?
Rajendra K Goyal
(Expert) 17 October 2015
Nominee may withdraw the money as per nomination and should keep in separate account till any court order is received regarding disposal of the amount.
If original receipt are not traceable, Bank would issue duplicate after receiving prescribed documents (application, affidavit, indemnity etc.)
K.S.Srinivas
(Expert) 19 October 2015
Sufficiently advised by the experts.
T. Kalaiselvan, Advocate
(Expert) 21 October 2015
What you should do as class II legal heirs is the question. If the class II legal heirs decide that the nominee shall disburse the amount to the heirs only after receiving them from the bank etc., they can file a succession certificate case in the appropriate court and in the same case they can file an IA seeking injunction restraining bank from disbursing the amount to nominee until disposal of this case.
The question about an existing spouse as evidently found in the papers of insurance policy can be looked into when the so called spouse is emerging to stake her claim at any later stage, until then why do you bother about the non-existent class I legal heir, who may even have predeceased the X, however that policy may be kept on hold for the time being till this matter is settled peacefully.
AVINASH MALHARRAO.ABHYANKAR
(Querist) 14 November 2015
Respected Experts. Please accept my thanks and regards to u all.
The Nominee is a niece of mine & my deceased elder brother. she has en cashed the Fixed deposit. My brother retired in Jan 2010 fro Govt. service and collected his Provident Fund Gratuity & also partially en cashed/commuted his pension and the entire amount was kept as fixed deposit in May 2010 wherein he nominated Niece. However the existence of his marital status was surfaced only through Insurance certificate where he declared his spouse name. But as he was suffering from COPD he was hospitalized prior to that he was staying in various old age homes.He never declared about his social status to his brother/me or sisters. The doctors stated that he was suffering from Cancer(last stage). However after hearing this the Niece came to see him in the hospital. At that moment he stated to her that he(deceased person) has kept sufficient money as fixed deposit as Gift for her life as she does not have her parents alive nor she has any financial support for her marriage and asked me to take care of her.He also asked me to locate and handover FD certificate to My Niece so that she can get the money on his death.So is it a Gift in contemplation of death? The class-2 heirs can not claim until the status of Class-1 legal is known. Therefore is it necessary to to register the amount received by her as GIft u/s-191 or she should wait till Class-1 Legal heir/so far declared as wife or Class-2 heir approach the Nominee for their due share. Since my deceased brother has made statement that the Money is kept entirely for my /his Niece, I have not joined with my sisters for succession certificate as class-2 legal heir. Is Nominee is required to contest in court that she received the amount as Gift?
Kumar Doab
(Expert) 14 November 2015
It has already been pointed out that: Nomination is not gift.
However if all available legal heirs consent they can gift (preferably registered) the amount collected by niece by their sweet will and close the matter once for all.
The LIC shall ask for payment to nominee.
You may need to convince LIC or bring order from court for payment to anyone else.
Once the process for succession certificate is initiated the court shall issue the certificate in the name of legal successors.
Kumar Doab
(Expert) 14 November 2015
Needless to mention that if there is indeed a spouse/ClassI legal heir she can stake claim to recover the proceeds from all other ClassII legal heirs and Nominee!
T. Kalaiselvan, Advocate
(Expert) 14 November 2015
You are simply extending the issue without trying to understand the legal issues involved in it. Did the nominee face any problem in the death claim from bank to claim the FD amount?
First let she claim the amount and keep it in reserve for the time being. The TDS will be applicable as per provisions of sec 191 of income tax act. If the bank is deducting tax at source for this, let the statement be secured so that the same amount need not suffer tax at a later stage if the amount if likely to be disbursed to the appropriate legal heirs when they emerge.
P. Venu
(Expert) 15 November 2015
The real issue is whether the deceased has left behind a class I nominee, i.e. the spouse and children, if any. This information could be gathered from the PPO issued in favour of the deceased and the pension file.
AVINASH MALHARRAO.ABHYANKAR
(Querist) 19 November 2015
My regards to all experts advise and would like to clarify as under.
Bank has paid the proceeds to Niece being the Nominee since May 2010.
The LIC policy and Other mutual fund certificate issued in the year 2014 indicates Nominee as Spouse with name. However address of Spouse is not available.The Nominee being dependent Niece for her marriage and other financial expenditure/social security etc at the time of putting Nominee in favor of Niece to the Deceased Fixed deposit in year 2010 when he retired.
With regard to Pension Pay Order issued in Year 2010, My deceased brother has also Nominated Niece to receive the Benefit and indicated social status as unmarried.
His social Status in LIC & Mutual fund certificates the status is Married indicating name of spouse in year 2014 and brother(uncle of Nominee) expired in July2015. Therefore it is assumed that he was married at the time of Death. The deceased brother was unmarried in year 2010 but could not get time to change the Nominations or make a will in favor of his Niece due to his ill health
However the deceased brother of Mine or Uncle of Nominee stated to Nominee in presence of me that the Money in Fixed deposit is exclusively for her life being a alone helpless person without parents, brother or sister as a moral & financial support for her life.
In view of above I have not joined with my sister to obtain succession certificate form court.Court may take view about existence or non existence of Claa-1 Legal Heir/ Spouse or End of Legacy of Class-1 legal heir.However i feel it is very time consuming process to decide on the matter.
Therefore please advise have i done wrong by not joining with my sisters for succession certificate? Is it so fast to get Succession Certificate without assumptions or presumption of death of spouse of deceased brother or end of Class-1 heir Legacy.
with the statement made by my brother in the hospital wherein I was standing besides him that Entire amount of Fixed deposit is for her life qualifies as a Gift in contemplation of death u/s section 191 of Indian succession ACT to my/his niece. We are HINDU family. With regards and request for expert advise on the queries please.
