How to Inherit Property in India?
Property

How to Inherit Property in India?

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:

  1. 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. 

  2. 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

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: 

  1. 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. 

  2. 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

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. 

Inheritance Rights of Grandchildren in India
Property

Inheritance Rights of Grandchildren in India

You would have often heard of disputes regarding the grandson's right in grandfather's property. In India, the inheritance law for grandchildren is the respective law of succession/inheritance.  

Hence, the right of grandchildren to inherit their grandparents' property must be determined per the applicable law of succession. 

Grandson's Rights in Grandfather's Property

A grandson's right to grandfather's property depends upon the applicable inheritance law. There is no uniform Law of Inheritance in India. Succession and inheritance are subject to various personal laws, depending upon religion. Let us examine a Hindu grandson's rights in his grandfather's property, based on the type of property and the succession rules. 

Property can either be self-acquired or ancestral. Ancestral property is passed on through generations—the right to inherit such property vests since birth and not depend upon the owner's death. A self-acquired property, on the other hand, is a property which one earns oneself. The right to inherit a self-acquired property depends upon the Will of the deceased. In the absence of a will, the inheritance of a self-acquired property depends on the applicable law of intestate succession. While a grandchild or a grandson has equal rights in ancestral property, such rights do not exist in a self-acquired property. Let us see what the rights of a grandson on his grandfather's property are.

When a Grandchild/Grandson Can Inherit Grandfather's Property?

  • Ancestral Property

A grandson's right on his grandfather's ancestral property is by birth. It does not depend upon his father or grandfather's death. A grandson owns a share of his grandfather's property since birth. Distribution of property happens in such a way that each share gets further divided into successive generations. For instance, if the father inherited 50% of the property, the grandsons would inherit 25% each in their grandfather's property. 

 

  • Self-acquired Property

A self-acquired property is inherited either by a will or by rules of succession. If the deceased leaves a will behind, the property is divided according to that. If no will has been left behind, then the applicable law of succession will determine if the grandson will have a right on grandfather's property. 

By a Will

Every adult and a mentally sound person is capable of executing a Will. The person who executes a will is known as a testator. By definition, a Will specifies to whom the properties of the testator will pass to on their death. These beneficiaries are known as the legatees of the Will. A testator has almost unlimited discretion to decide their Will's legatees (who need not their family members or relatives) and how to divide their estate amongst the legatees. 

Thus, if the deceased grandparent has left behind a Will, and that Will specifies that a grandchild will be a legatee of a specified share of their estate, then that grandchild will be entitled to inherit that share of that grandparent's estate. 

However, if the deceased grandparent has left behind a Will, but the Will has not allotted a share of his estate to the grandchild, then the grandchild cannot claim any share of the deceased's estate. 

Without A Will

If the deceased Hindu has not left behind a Will, the succession of their estate will be governed by the rules contained in the Hindu Succession Act, 1956. 

Under Hindu Law, the property comprises two types: (1) Joint Family Property and (2) Self-Acquired Property. True to its name, the clearest indication of Self-Acquired Property is that it has been acquired with the money of one's own efforts. 

A grandchild can inherit their grandparent's property only if their parent through whom they are related to that grandparent has died before that grandparent. In such a case, the share of the grandfather's property the parent in question would have inherited if they were alive will be divided amongst the mother (if she is alive) and the grandchild and their siblings. The siblings, and the mother, will divide this share equally. The siblings will both get equal shares. 

Illustration— Grandchild G is related to their grandmother GM through their father F. F has died before GM. F, if he were alive, would have been entitled to inherit 1/3 of GM's property. G has a sibling S, and a surviving mother M. Hence, the 1/3 share of GM will be divided equally amongst M and G+S. Thus, M will take get a 1/6 share, and G and S will divide their 1/6 shares equally amongst themselves. So, finally, the grandchild G will get 1/12 of the grandfather's property. 

Property Inherited From Father

Let us also see how the property inherited from a father differs from the property a grandson inherits from his grandfather: 

  • If the property is ancestral in nature, then the grandson has an equal right as his father in his grandfather's property. 

  • The property inherited from the father's self-acquired property would vest in the child only after the father's death. A grandson, on the other hand, has a right to inherit his grandfather's property since birth. 

  • A father can exclude his child from his self-acquired property, but a grandson cannot be excluded from his grandfather's property if the property is ancestral. 

  • If the self-acquired property of the grandfather passes on to the grandchild, then he can inherit the property only after his father's death. The grandson or grandchild will get the share of his deceased father. 

Hence, the distribution of grandfather's property among his grandchildren depends heavily on the type of property it is. However, to avoid disputes, it is always best to prepare a will beforehand.

Widow's Rights in a Father-in-Law's Property
Property

Widow's Rights in a Father-in-Law's Property

When will a widow be entitled to inherit the property of her father-in-law? The answer will depend on the applicable law of inheritance of property in India. The distribution of a father's property occurs per the inheritance property law in India. Let us see when a widow can inherit her father-in-law's property. 

The Inheritance Law in India

There is no uniform inheritance property law in India. The law of Inheritance varies based on one's religion. Thus, Hindus, Muslims, Christians, Parsis, etc., are governed by their own separate inheritance laws. 

The religion of the deceased determines the law of inheritance that will govern the succession of their estate. Hence, when a Hindu dies, then the Hindu law of inheritance and succession applies to his estate.

Inheritance Property Law in India

 Succession under Hindu law is found in two laws: the Hindu Succession Act, 1956, and the Indian Succession Act, 1925. These laws govern who the estate of a Hindu deceased will pass to on their death. 

When Can a Widow Inherit Her Father-in-Law's Property?

Inheritance/succession is of two types:

  1. Testamentary Succession: When the deceased leaves behind a will, the instructions in the will alone govern the deceased's property's succession. Such succession is called testamentary succession. The Indian Succession Act, 1925, governs testamentary succession.

  2. Intestate Succession: In other cases, the deceased does not leave behind a Will. In such cases, the law decides which persons the estate of the deceased will succeed to. When succession takes place in this manner, it is known as intestate succession. The Hindu Succession Act, 1956 governs intestate succession.

Depending on the circumstances, a widow can inherit her father-in-law's property through both these modes. 

By Testamentary Succession 

Every adult and a mentally sound person is capable of executing a Will. The person who executes a will is known as a testator. A Will, by definition, specifies to whom the properties of the testator will pass to on their death. These beneficiaries are known as the legatees of the Will. A testator has almost unlimited discretion to decide the legatees of their Will (who need not their family members or relatives) and how to divide their estate amongst the legatees. 

Thus, if the deceased father-in-law has left behind a Will, and that Will specifies that a widow will be a legatee of a specified share of his estate, the widow will be entitled to inherit that share of the father-in-law's estate. 

On the contrary, there is also a corresponding risk. If the deceased father-in-law has left behind a Will, but the Will has not allotted a share of his estate to the widow, then the widow cannot claim any share of the deceased's estate. 

By Intestate Succession

If the deceased Hindu has not left behind a Will, the succession of their estate will be governed by the rules contained in the Hindu Succession Act, 1956. 

Under Hindu Law, the property is of two types: Joint Family property and Self-Acquired property. 

  1. Joint Family Property: All property inherited from one's ancestors is considered Joint Family Property. 

  2. Self-Acquired Property: All other properties are considered the Self-Acquired Property of the respective person. The clearest indication of Self-Acquired Property is that its has been acquired with the money of one's own efforts. 

The widow will inherit some portion of the father-in-law's Self-Acquired Property. The Self-Acquired Property of the deceased father-in-law will pass to his Class I heirs. The list of Class I heirs is contained in the Schedule of the Hindu Succession Act, 1956. The widow (of the deceased's son who died before the deceased) is a Class I heir. The deceased's widow, mother, sons, and daughters are other notable Class I heirs. Hence, the widow will definitely get a share of the father-in-law's Self-Acquired Property. However, the share of the father-in-law's Self-Acquired Property she will inherit will depend on the number of Class I heirs alive. The share will be determined by this process: 

  1. The deceased's widow, sons, daughters, and mother take equal shares of the property. 

  2. If any son, or daughter, of the deceased, has died before him, then the share of that son/daughter will be divided amongst their widow, sons, and daughters. In the case of a son, his sons and daughters will take one share, and his widow will take the second share, of that son's share. 

Thus, the widow of the father-in-law will take her share in Step 2. The extent of her share will depend on how many of the father-in-law's sons and daughters and mothers, and the widow's own sons and daughters, are alive. 

Illustration— The deceased X (the father-in-law) has been survived by his only daughter D, mother M, and the widow W of a son who died before him. This widow W has a single daughter WD of her own. 

  1. The Self-Acquired Property of the deceased will be divided equally amongst his mother M, dead son, and daughter D. Thus, D, M, and the dead son each get 1/3 of the property. 

  2. The 1/3 share of the dead son will then be divided equally amongst his widow W and the daughter WD of the widow. Thus, the widow W and her daughter WD both get 1/6 of the deceased's property each. 

Hence, the widow is entitled to inherit 1/6 of the self-acquired property of the father-in-law. 

Indian inheritance law gives more rights to a daughter than a daughter-in-law in father-in-law's property. The widow would be entitled to her deceased husband's share in an intestate succession. 

Intestate Succession or Succession without a WILL: Things you should know
Wills / Trusts

Intestate Succession or Succession without a WILL: Things you should know

Intestate succession means a succession without a will. A will generally dictates how a person plans to transfer his assets or properties after his death to his/her heirs. A person dies intestate when he has not bequeathed his properties according to a will. Succession can either be testate or intestate. 

Meaning of Testate Succession

In some cases, a person leaves behind a Will, which specifies property distribution after their death. In such cases, the Will controls succession.

When succession takes place in this manner, it is known as testamentary succession. 

Meaning of Intestate Succession

In other cases, a person does not leave behind a will. In such cases, intestate succession law controls succession. Thus, the persons who become entitled to the deceased's properties are the deceased's, legal heirs. In India, the succession law applicable to a deceased's estate depends on their religion. Hindus, Muslims, Christians, Parsis, etc., have different succession laws. When succession takes place in this manner, it is known as intestate succession.  

Intestate Succession under Hindu Law

If the deceased is a Hindu, Hindu Succession law will govern the succession. The Hindu Law of Intestate Succession is in the Hindu Succession Act, 1956. 

Two Types of Property

Under Hindu Law, the property is of two types: 

  1. Joint Family Property: The Hindu Joint Family is an ancient social structure prevailing in Indian society. In Hindu Law, specific properties are considered Joint Family Property. Generally, all property inherited from one's father, paternal grandfather, and paternal great-grandfather are considered Joint Family Property. 

  2. Self-Acquired Property: All other properties are considered the Self-Acquired Property of the respective person. The most unambiguous indication of Self-Acquired Property is that it is acquired with the money of one's efforts.

This distinction is important because, depending on where you reside, different rules govern the succession of Joint Family Property and Self-Acquired Property. 

The succession of Joint Family Property

Depending on where you reside, you will be governed either by Dayabhaga Law or Mitakshara Law. Generally, Hindus living in West Bengal, Orissa, and parts of Assam, are governed by Mitakshara Law, and Mitakshara Law governs all other Hindus. Both of these refer to old schools of religious Hindu law that prevailed in these respective geographical regions. Once upon a time, these schools of law governed the substantial part of Hindu succession. Today, there are of minimal significance. Legally, its only importance in the present is determining the order of intestate succession.  

Section 6 of the Hindu Succession Act governs the Mitakshara Joint Family Property's succession. When a coparcener dies, their share in the Joint Family Property passes to the legal heirs according to the rules contained in this Section. The process is as follows: 

  1. You divide the whole joint family property amongst the deceased and their legal heirs. Usually, the deceased, their wife, their children (both sons and daughters), and their parents get equal shares.

  2. The share the deceased person receives becomes his self-acquired property. This share passes to the deceased's legal heirs according to the rules governing Self-Acquired Property's succession (see below).

The succession of Self-Acquired Property

The rules governing the succession of Self-Acquired Property of the deceased varies based on the gender of the deceased. However, the same rules apply to all Hindus regardless of whether Dayabhaga Law or Mitakshara Law governs them. 

For male Hindus, there are four categories of legal heirs: Class I heirs, Class II heirs, agnates, and cognates. The Schedule of the Hindu Succession Act, 1956 specifies Class I heirs and Class II heirs. An agnate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a pure male line. A cognate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a line consisting of both males and females. The order of intestate succession in self-acquired property is as follows:

  1. Class I Heirs: If any Class I heir[s] exist, they get the deceased's whole Self-Acquired Property. If more than one such heir exists, they both get equal shares. The deceased's wife, sons, daughters, and mother are notable Class I heirs. However, the father of the deceased is not a Class I heir. 

  2. Class II Heirs: If not a single Class I heir exists, the whole Self-Acquired Property of the deceased goes to the Class II heirs. The deceased's father, brothers, and sisters are notable Class II heirs. If the father is alive, he takes the whole property. If he isn't alive, then the brothers and sisters take the property in equal shares. 

  3. Agnates: If there are no Class I and Class II heirs, the deceased's agnates take the whole of the Self-Acquired Property. 

  4. Cognates: If there are no Class I and Class II heirs, the deceased's cognates take the whole of the Self-Acquired Property. 

A different set of rules applies to female Hindus. For female Hindus, the order of intestate succession for legal heirs is: (i) sons, daughters, and husband; (ii) heirs of the husband; (iii) parents; (iv) heirs of the father; and (vi) heirs of the mother. Each category is preferred to the later ones, in that order of preference. All heirs of the same class get equal shares of the property. 

Position of Illegitimate Children

The intestate succession of an illegitimate child is only through his mother. An illegitimate child's share in intestate succession is restricted to his mother and not his father.  

Gift Deed: All you should know.
Wills / Trusts

Gift Deed: All you should know.

You want to gift your near and dear ones some property? You can do so by drafting a gift deed! A gift deed is a legal instrument for transferring moveable and immoveable property. The transfer of property by a gift deed is voluntary and without any consideration. A gift is generally made based on love and affection, for example, the gift of ancestral property by a grandfather to grandchildren. Section 122 of the Transfer of Property Act, 1822 governs a gift deed. Under Section 117 of the Registration Act, it is compulsory to register the same if you gift an immovable property. 

How to Draft a Gift Deed?

A gift deed should include the following information: 

  • Date and place where you will execute the gift deed. 

  • Names of the donor and donee.

  • Address of the donor and donee. 

  • What is the relationship between them?

  • What is the property being gifted?

  • Signatures of two witnesses. 

  • Signatures of the donor and the donee. 

 

How to Draft a Gift Deed of Immovable Property?

A Gift Deed is mandatory for a gift of immovable property to be effective. It would help if you keep the following in mind while drafting a gift deed of immovable property:

  1. It should be in writing. 

  2. The donor must sign it. 

  3. Two independent witnesses should attest it. Hence, the witnesses must not be the donor, or the beneficiary, of the gift. 

  4. Stamp duty is payable on gifts of immovable property. The Gift Deed must be executed on stamp paper of the same value as the stamp duty payable. The exact stamp duty payable varies from state to state. It is usually 2-5% of the market value of the property. Some states offer stamp duty concessions for gifts to blood relatives. 

  5. Finally, the duly executed and stamped Gift Deed must be registered with the local Sub-Registrar of Assurances. Some states charge a registration fee, which varies from a few hundred to 1-2% of the property's market value. 

A good Gift Deed of Immovable Property should contain at least the following elements in its content: 

  1. You should describe the property you are gifting. Typically, a statement of the plot number, the locality/street, the local post office, the panchayat or urban authority, the block, the sub-district, the district, the state, and the PIN Code, will be sufficient to identify any property in India uniquely. 

  2. It may be prudent also to specify the boundaries and size of the property and the survey number of the property in the state's land records. These details can be obtained from the land records of the state in which the property is situated. 

  3. A statement of the nature of the donor's title over the property. How the donor acquired title over the property must be mentioned. The best practice is to identify the Deed by which the donor came to be the owner of the property by its registration number, year of execution, and the office where it was registered.   

  4. The fair-market value of the property should be explicitly mentioned. This is necessary to calculate the stamp duty payable on the gift. 

  5. An explicit statement that the transfer of the property has been made, for no consideration and freely and voluntarily. 

  6. A statement of acceptance by the beneficiary of the gift. This is essential because a gift doesn't take effect unless the beneficiary accepts it. 

How to Draft a Gift Deed of Movable Property

A Gift Deed is not mandatory for a gift of movable property. However, you can draft a Gift Deed for gifts of movable property too. If a Gift Deed is executed, it must be executed in exactly the same way as, the process for executing a Gift Deed of Immovable Property as explained above. 

A good Gift Deed of movable Property should contain at least the following elements in its content: 

  1.  Try to identify the property by some unique identification associated with it. For instance, a car can be uniquely identified by its motor vehicle registration details; the machinery can be uniquely identified by its invoice number and supplier details, etc. 

  2. A statement of the nature of the donor's title over the property. 

  3. Mention the fair market value of the property.

  4. An explicit statement that the transfer of the property has been made, for no consideration and freely and voluntarily. 

  5. A statement of acceptance by the beneficiary of the gift. A gift doesn't take effect unless the beneficiary accepts it. 

  6. Date, place, and time of execution.

How to Draft a Gift Deed of Money?

No stamp duty is payable on a gift of money. A Gift Deed of Money is not required to be registered. If the parties wish to, then they can register it, but this is not mandatory. Hence, a Gift Deed of Money can very well be executed on plain paper and signed by the parties. You can also execute it by an exchange of letters between the parties containing a clear offer followed by an unconditional acceptance of that offer. 

A good Gift Deed of Immovable Property should contain at least the following elements in its content: 

  1. The amount of money being gifted

  2. Identify the money being gifted by the currency note numbers, cheque numbers, bank transfer numbers, etc.  

  3. An explicit statement that the transfer has been made for no consideration. 

Documents Required for Registration of Gift Deed

  1. The duly executed, and stamped, Gift Deed must be presented to the office of the local Sub-Registrar of Assurances for registration. 

  2. Some states may require the advocate, or registered deed-writer, who drafted the Gift Deed to affix a declaration, and their registration number, on the Deed. 

  3. A true certified copy of the Gift Deed. This copy will be retained by the registering authority. The Registration Rules of the state in which the Deed is being registered will specify the procedure for making a true certified copy of the Deed. 

  4. Proof of payment of the registration fees payable, if any. 

  5. Identity, and Address, Proofs of all the parties and the attesting witnesses. 

What is the Difference Between A Gift Deed and a Property Sale?

Once a property is transferred to you as a gift, you are its owner. The gifted property can be sold. But, a gift deed is different from a property sale. A property sale involves the payment of some money for the transfer of property. A gift deed is voluntary and without any payment of money. Hence, once you have validly registered the gift deed and are the property owner, you can sell the gifted property for consideration. 

Drafting a gift deed for an immovable property may involve many legal implications, such as tax considerations. Prefer hiring a lawyer to draft a gift deed for immovable property. 

Testamentary Succession: Will it fair and square
Wills / Trusts

Testamentary Succession: Will it fair and square

It is hard to cope up when a loved one passes away, even harder when the deceased is the head of the family. Some plan for succession and create a Will while they are alive. However, many don’t foresee the need and leave it to chance. In such situations, it is tough for the rest of the family members to decide how the property Will be divided amongst and transferred to heirs. Who gets what, when and how remains some uncomfortable questions?

Testamentary Succession is the possible answer. This post shares insights on what does it mean, frequently used terms related to Testamentary succession under The Indian Succession Act 1925, characteristics of a valid Will, importance of having a Will and how Hindu Law governs Testamentary succession.

 

What is the meaning of Testamentary succession?

In simple terms, it is defined as the succession of property by a WILL or TESTAMENT as per applicable rules of law. As per Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law. 

An important point to note here is that the transfer of property happens as per provisions mentioned in the Will and not as per the inheritance law. However, if the Will is invalid or illegal then the transfer or devolution of property happens as per the law of inheritance. Alternatively, Testamentary succession is also referred to as right of inheritance.

 

Common Terms related to Testamentary Succession under Hindu Law

It is important to understand the frequently used terms that might sound complicated but are easy to interpret. They are:

  • Will – A legal declaration created by a person expressing clear intention or wish with regards to how his or her property and assets Will be transferred after death.

  • Testator – A person who creates his or her Will.

  • Executor – A person appointed by the Testator for executing the Will.

  • Administrator – A person appointed by the Court for executing the Will.

  • Attestation of Will – It is the process of signing the Will by two witnesses to verify the signatures of the executant.

  • Codicil – A legal document made by Testator and signed by two witnesses for making minor changes in the Will that has already been executed.

  • Probate – It is a documentary evidence of the appointment of the Executor and establishes the validity of the Will.

  • Letter of Administration – A certificate granted by the Court for appointing an Administrator of the Will.

 

Important Characteristics of a valid Will

A Testator must consider the following essential characteristics while creating his or her Will:

  • It is a written document expressing the testator's clear intentions or desire with respect to transfer of his or her assets or property.

  • It can be created by any person of age 18 years or above who is capable of entering into an agreement.

  • A person influenced by alcohol or fear or affected by illness or fraud cannot make a Will.

  • The Indian Succession Act, 1925 does not prescribe any specific format of writing a Will.

  • Minor unintentional errors in a Will – error in name spellings or details of property – does not alter the true intention of the testator.

  • The Testator should sign the Will which should be countersigned by two witnesses. In cases where the testator cannot sign, thumb impressions of the testator should be taken.

  • The signature of the testator should appear at the bottom of the page or at the end of the contents of the Will.

  • The witnesses to the Will should not be the beneficiaries themselves.

  • A Will comes into force only after the death of the testator.

  • And finally, it is not mandatory to make the Will document on a stamp paper and register it. The testator can also write it on a plain paper.

 

Why is having a Will important?

Each person wishes that his legal heirs stay a part of the cohesive family even after his or her death and that there are no fights over property matters. After all, fair division of property is a sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships and if done otherwise, it breaks relations forever.

 

It is for this purpose, making a fair Will comes very handy. The testator must clearly document his or her desires with respect to the assets that his legal heirs would carry out after his or her death. The Will must clearly state how the testator's property Will be transferred, to whom it Will be transferred, how much share of property Will be transferred to different heirs and so on.

 

Generally, a very common question arises here as to what happens if a person dies without leaving a Will behind? In such cases, the division and transfer of property happens by way of law. This is called intestate succession.

Which law governs Testamentary Succession?

In India, Testamentary succession is governed by The Indian Succession Act 1925 including the intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.

Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose their property and assets according to Muslim Law.

Conclusion

It is always advisable to write a well thought and a fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles for claiming their rightful share.

Legal Experts at LegalKart can help draft a Will that best suits your requirement.