Inheritance of Property After Death
Throughout your life, you have accumulated a number of properties. All of these properties, taken together, comprise your estate. If you want to choose whom your properties pass on to, you should frame a will of inherited property. If you do not frame a will then the property succession will happen as per law of inheritance. Let us see how property is inherited in India.
Inheritance of Property in India
The Law of Inheritance, also known as the Law of Succession, controls the process of inheritance. Property succession in India is of two types:
Testamentary Succession: You may choose to execute a Will. The Will, by definition, will specify who will inherit what shares of your estate. In such a case, succession will take place according to the instructions contained in your Will. When succession takes place in this manner, it is known as testamentary succession.
Intestate Succession: You may also choose not to execute a Will. However, someone must still inherit your property. The Law of Inheritance has a built-in contingency for such cases. The law specifies certain persons as your legal heirs, who are entitled to defined shares of your estate after your death. When succession takes place in this manner, it is known as intestate succession.
Succession will be either testamentary or intestate. It cannot be both at the same time. If you leave behind a Will, the succession of your estate will be testamentary. If you don’t, it will be intestate.
Legal Inheritance of Property
Testamentary succession will occur if you leave behind a Will.
Every mentally sound adult is capable of executing a Will. A Will is a legal document that contains instructions to govern the inheritance of your estate. It will specify (i) who will be entitled to your estate and (ii) the shares of your estate each of them will be entitled to. The persons who are entitled to inherit under your Will are known as your legatees. Any person can be a legatee, even a person who is not your relative.
The Indian Succession Act, 1925 is the uniform Law of Testamentary Succession which governs everyone except Muslims. Muslims are governed by their own Muslim Law of Testamentary Succession.
You have practically unlimited discretion to decide, your legatees and the shares of your estate each will inherit. Generally, all of your property can be bequeathed by a Will. However, if you are a Muslim, then you cannot bequeath by a Will any more than 1/3 of your estate, unless your legal heirs consent to exceeding this cap. There is no such limitation for anyone else.
The manner of executing a Will differs, based on whether you are governed by the Indian Succession Act, 1925 or the Muslim Law of Testamentary Succession:
Unless you are a Muslim, you must follow the procedure in the Indian Succession Act to execute a Will. The Will must be written, and you must sign or affix your thumb impression on it. It must be attested by at least two witnesses who have seen you sign it. A Will can be executed on plain paper. It is not necessary to execute it on stamp paper. It is also not necessary to be registered.
If you are a Muslim, there is an even simpler procedure to execute a Will. Your Will need not be signed or written. It can even be oral. There is no need for attesting witnesses. The only requirement is that your intention should be clear. However, oral wills are notoriously difficult to prove. Hence, it is always prudent to execute your Will in writing, even though it is unnecessary.
After your death, someone has to take the responsibility of carrying out the instructions in your Will. This process is known as the execution of the Will, and the person who does it is known as the executor. They will ensure that the specified shares of your estate are bequeathed to the respective legatees. There can be multiple executors. You have the option to specify the sole executor, or co-executors, of your Will in the Will itself. Remember to take their consent. Do give some thought to your choice of an executor, as this person will be the one responsible for executing your Will. If you don’t appoint an executor, or the executors refuse to act as executors after your death, the competent court can appoint some of your legal heirs as the executor[s].
Intestate succession will occur if you don’t leave behind a Will. The applicable Law of Intestate Succession will govern the succession of your estate.
There is no uniform Law of Intestate Succession in India. Rather, it varies based on one’s religion. Thus, Hindus, Muslims, Christians, Parsis, etc., are all governed by their own separate Laws of Intestate Succession. For instance, the law for Hindus is contained in the Hindu Succession Act, 1956, the law for Christians is contained in the Indian Succession Act, 1925, etc.
Your religion will determine which Law of Intestate Succession will govern the succession of your estate. Thus, if you are a Hindu, then the Hindu Succession Act, 1956 will govern; if you are a Christian, then the Indian Succession Act, 1925 will govern, etc.
Regardless of which Law of Intestate Succession applies, at the highest level, all of them operate similarly: each of your legal heirs will inherit specific shares of your estate. The legal heirs, and the shares they are each entitled to, will vary based on the number of legal heirs alive and their relationship with each other. For instance, consider a married Hindu male. If you are a Hindu married male, ordinarily, your wife, sons, daughters, and mother are your legal heirs. They will each take an equal share of your estate. Thus, if you are survived by a wife, mother, one son, and one daughter, each of them will take a ¼ of your estate. However, if your daughter is dead, but she is survived by her only daughter (your grand-daughter), the grand-daughter will become an additional legal heir entitled to her mother’s share. Thus, she will inherit ¼ of your estate.
Hence, the inheritance of property in India is a complex process, and in the absence of a will, is governed by property succession laws.