INHERITANCE AND SUCCESSION

Succession is the process of inheriting the assets which includes cash, jewellery, land, house or any property upon the death of a person. The succession by the legal heirs or next of kin is either based on the general principles laid down as per the law (it is referred to intestate succession) or the Will of the deceased. Succession rules apply differently to different communities.

Hindus, Sikhs, Jains are governed the Hindu Succession Act, 1956. The Indian Succession Act 1925 is for Christians, Parsis etc. and the Muslim law is applicable to Muslims.

Hindu Law:

The Hindu Law distinguishes between inheritance of a Hindu Male and a female.

Hindu Male: As per the Hindu Succession Act, 1956 the property of a Hindu Male will be inherited by his mother, widow, son(s) or their legal heirs in case predeceased. Each heir is entitled to one share in the property of the deceased male.

Where the deceased has none of the above; his estate shall be inherited by the father, brother, sister, brother’s children, sister’s children. However if the any brother or sister predecease the hindu male; only the heir living at the time of the death of the Hindu Male will be inherit the property.

Hindu Female: The property of a Hindu female dying intestate, or without a will, shall be inherited by her sons and daughters (including the children of any pre-deceased son or daughter) and the husband. In case the property of the Hindu female was inherited by her from her parents; it will only devolve upon her children and in case of no children will go her parents or their legal heirs.

Muslim Law:

Sharers and Residuaries are two types of heirs under the Muslim Law. Sharers are entitled to a certain share and the residuaries are entitled to what is left after the sharers take their entitlement.

Under the Muslim law following are the Sharers:

Husband

Wife

Daughter

Daughter of a son (or son’s son or son’s son and so on)

Father

Paternal Grandfather

Mother

Grandmother on the male line

Full sister

Consanguine sister

Uterine sister and

Uterine brother.

The share taken by each sharer will vary in certain conditions.

A husband will take a half share in the wife’s estate where the couple does not have lineal descendants (children), and a one-fourth share where they have lineal descendants.

A widow shall have 1/4th sharewhere she and her husband have no lineal descendants and a one-eighth share otherwise.

For son(s) and daughter(s); the daughters cease to be sharers and become residuariesto the father’s estate(the distribution of the residue is in a manner that son (s) get two times of that of the daughter.)

Where the deceased only leaves behind a daughter; she is entitled to ½ share and in case there are more than one daughter; they are entitled to get a share to the extent of 2/3rd)

Only if an heir lives even after the death, he is therefore entitled to a share in the property. Meaning thereby that there shall be no such right of inheritance or share if any heir predeceases his ancestor.

Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.

The Indian Succession Act states that the assets left behind by a Christian or a Parsi will be inherited by his mother, widow and children in equal shares.

Intestate succession:

'Intestate succession' occurs when the deceased does not leave a will in respect of their assets.

As explained above, the rules of intestate succession vary based on the personal law applicable to the deceased, which is based on the deceased's religion. For Hindus, Jains, Buddhists and Sikhs, the rules set out in the Hindu Succession Act 1956 (HSA) apply. For Muslims, the law is uncodified and is based on principles of Sharia, which are further divided into rules applicable to various sects and subsects. For instance, rules applicable to Sunnis may differ from those applicable to Shias, and even among Shias, the rules applicable to Bohris may differ from those applicable to Cutchi Memons.

The Indian Succession Act 1925 (ISA) applies to both Christians and Parsis – however, the relevant rules for Christians are contained in Chapter II of Part V, whereas the relevant rules for Parsis are contained in Chapter III of Part V.

The below table sets out an example of how inheritance varies. It compares the legal heirs of a person passing away intestate with surviving parents and a spouse but no children or siblings, according to their religion at the time of demise.

Testamentary succession:

The rules for testamentary succession are significantly less complicated than those for intestate succession. The ISA applies uniformly to wills of persons of all faiths, other than Muslims.

Therefore, concepts of capacity, formal validity and essential validity of the wills of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis are contained in the ISA. However, a deceased's religion may influence whether probate of the will is required.

For Muslims, to whom this regime does not apply, the rules of testamentary succession are not codified and are based on Sharia. As with intestate succession, the rules differ based on the deceased's sect and subsect. However, the basic rule which applies to nearly all Muslims is that of forced heirship, whereby a Muslim testator may bequeath only one-third of their estate, which is left after the payment of funeral expenses and debts, by will unless their heirs' consent is obtained. If there are multiple bequests under the will which together exceed one-third of the estate, the bequests abate proportionately. The remaining balance of the estate is inherited by the spouse and the remaining heirs.

Marriage:

To compound matters, marriage may vary the rules of succession applicable to a person's estate, irrespective of whether they are male or female.

Customarily, parties professing the same religion marry under the personal laws applicable to their religion. For instance, Hindus marry under the Hindu Marriage Act 1955 and Christians under the Indian Christian Marriage Act 1872. However, persons professing different religions typically marry under the Special Marriage Act 1954 (SMA) which provides a special regime for interfaith marriage.

When a person's marriage is solemnised under the SMA, succession to their estate is governed by the ISA instead of the applicable personal laws. Accordingly, if a Hindu-Muslim marriage is solemnised under the SMA, then neither the HSA nor Sharia rules would apply; instead, the ISA would. Consequently, forced heirship rules will cease to apply to the Muslim spouse. However, this is not the case if both parties are Hindus, Jains, Buddhists or Sikhs.

Another method by which persons professing different religions may marry is by conversion of one party to the religion of the other. On conversion, succession will be as per the personal law applicable to the religion to which the person has converted.

Interplay of succession rules:

In most common law countries, including India, succession to immovable property of a deceased is regulated by the law of the jurisdiction where the property is situated, irrespective of their nationality or domicile. On the other hand, succession to the moveable property of a deceased is regulated by the law of the country in which such person had their domicile at the time of their death. In some other countries, succession to moveable property is regulated by nationality.

Therefore, if any of these factors are satisfied, the succession to the estate of a person residing abroad may be governed by Indian law. However, the term 'Indian law' is a misnomer inasmuch as it suggests the uniformity or homogeneity of succession laws.

Succession laws in India are diverse and depend on:

the personal law of the deceased, which in turn is largely based on their religion; and

the nature of the assets.

Owing to the variety of religious affiliations of Indians (India recognises at least six major religions), determining the relevant succession regime can be more complicated in India than in other common law countries.

Within this broad regime, succession laws vary depending on whether succession is intestate or testamentary.

WHEN SUCCESSION CERTIFICATE IS REQUIRED?

A person passed away intestate when he/she does not leave a legal will. Succession Certificates entitle the holders to make payments of debt or transfer securities to the holder of the certificate without having to ascertain the legal heir entitled to it.

WHAT IS A SUCCESSION CERTIFICATE?

A succession certificate is given to the successor/heir of a deceased person who has not prepared a will in order to establish the authenticity of the successor and also to give the certificate holder an authority over the deceased person’s movable assets such as bank account, shares, fixed deposits debts and securities etc.

WHO CAN APPLY FOR SUCCESSION CERTIFICATE?

A Succession Certificate is granted by the court in favour of the legal heirs of the person dying intestate (without Will Deed) so that the heirs can claim the securities, bank account and other movable property along with the debts left behind by the deceased.

IS SUCCESSION CERTIFICATE ISSUED FOR LAND IN HOUSE AN IMMOVABLE PROPERTY?

No, it is only for movable assets such as accounts, fixed deposits etc.

WHO CAN ISSUE A SUCCESSION CERTIFICATE?

A succession certificate is granted by the district judge. The jurisdiction would be where the deceased person ordinarily resided at the time of his death or the jurisdiction within which any property belonging to the deceased may be found.

WHAT IS THE VALIDITY OF THE CERTIFICATE?

The succession certificate is valid anywhere within India. However, where a certificate has been granted to a person who is a resident of an abroad/foreign country, by an Indian representative of such foreign country, the certificate will stand valid only if properly stamped in accordance with The Court Fee Act 1870.

WHAT IS THE PROCEDURE TO OBTAIN A SUCCESSION CERTIFICATE?

In order to obtain a Succession Certificate, an application is required to be filed in the Court of District Judge of whose jurisdiction the deceased person ordinarily resided at the time of his/her or where the property of deceased person may be found or situated.

WHAT ARE THE DOCUMENTS REQUIRED FOR GETTING A SUCCESSION CERTIFICATE?

A petition in the prescribed format must be file to the civil Court—within whose jurisdiction the deceased ordinarily resided at the time of his death or the asset of the deceased is situated. The petition should contain names of all heirs of deceased date and place of death should be mentioned in the application.

IS SUCCESSION CERTIFICATE IS REQUIRED IF THERE IS A WILL?

Yes, for movable property like the provident fund, bank deposits, shares, loans, or other securities, the succession certificate is required.