Wills / Trusts

What Does the Succession Law Say?

LegalKart Editor
LegalKart Editor 05 min read 10289 Views
Last Updated: Dec 04, 2023
Succession governs how the inheritance of property will take place. Under Indian Succession Law, a Succession Certificate is required. Succession Certificate is credible proof that the person obtaining the same is the rightful heir.

We have been through a tough time of Covid Lockdown recetnly and now in a new year of 2023, perception prevails that life is uncetain and planning sucession of property should be a critical aspect of our overall planning.  We will end up with a number of different properties during the course of our life. When combined together, all of these different pieces of property make up our estate. When we pass away, the people who will inherit our estate must found appropriately planned succession documents. If not, it will be left in what is known as a "ownerless" estate.

As a consequence of this, when we pass away, the people who come after us will become the legal proprietors of our estate. Inheritance or succession are common names that people use to refer to this process. When we are no longer here, those who will inherit our property and possessions are known as our successors. The entire process is governed by a body of law known as succession law, which you may read more about here. The idea of inheritance is not synonymous with the concept of succession. Inheritance refers to the process by which a person receives the property that was previously owned by his or her ancestors. The inheritance is distributed in accordance with a predetermined order, which is established by the succession. In order to conform with the criteria of Indian Succession Law, one will typically need to obtain a succession certificate. It is necessary for the individual who obtains the Succession Certificate to offer credible evidence that they are the rightful heir to the estate in order to satisfy the requirements of the certificate.

 

Types of Succession

Succession is of two types: 

  1. Testamentary Succession. 

  2. Intestate Succession. 

After your death, the succession of your estate will be either testamentary or intestate. It cannot be both at the same time. If you have left behind a Will, the succession of your estate will be testamentary. Otherwise (that is, if you have not left behind a Will), your estate's succession will be intestate. 

 

Testamentary Succession

Testamentary succession is nothing more than executing a will. A will would then govern how your property is distributed among your legal heirs. A will includes the following information: 

a) Who gets your estate 

b) How is your estate distributed among the various heirs? 

Persons named in your will are your legatees. You can choose anyone to be your legatee. It is not required that a legatee is your relative. Wills are recognized under the Indian Succession laws.

The Indian Succession Act, 1925 governs the making and enforcing of Wills. It is the law which governs testamentary succession in India. Indian Succession Act, 1925 applies to everyone, except Muslims. Muslims are governed by their own personal laws. A Will gives you freedom to distribute your property according to your wishes.  However, if you are a Muslim, you cannot bequeath by a Will any more than 1/3 of your estate unless your legal heirs' consent to exceed this cap. There is no such limitation for anyone else.

You can execute your Will in accordance with the Indian Succession Act, 1925, if you are not a Muslim. If you are a Muslim, you have to execute your Will according to the Muslim personal laws. Capture the will in writing and sign it. You can also affix your thumb impression on the Will. Two witnesses need to attest the Will. These witnesses should have seen you sign the Will. A Will can be executed on plain paper. A Will need not be executed on a stamp paper. It is also not necessary to be registered.

Muslims can execute their Wills through a far easier procedure. Your Will need not be signed or written. It can even be oral. There is no need for attesting witnesses. You need to make your intent clear through your Will. However, oral wills are difficult to prove. Hence, It is preferable to capture your will in writing. 

After one passes away, a person should be made responsible to execute the will. Typically, lawyers are given this responsibility.  When another person implements the instructions given in the Will of a deceased, it is called executing the Will. The person who executes the Will is called an executor. Executors take care that the estate is distributed in accordance with the Will. There can be multiple executors. You can choose one person or more than one person to act as executors of your Will.  Remember to take their consent. Choosing an executor should be a careful process. 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

If you die without leaving a Will, your property would pass on through Intestate succession. Laws governing intestate succession in India are not uniform. You are governed by the personal law of your religion. 

Various religions in India are governed by a variety of varying laws of intestate succession. For example, the Hindu Succession Act of 1956 is the law that regulates the intestate succession of Hindus. The Indian Succession Act of 1925 is the piece of legislation that regulates the intestate succession of Christians. Hence, the Hindu Succession Act, which was passed in 1956, will apply to you if you are a Hindu; if you are Christian, the Indian Succession Act, which was passed in 1925, will apply to you; and so on. Although the rules that govern many religions are not always the same, the fundamental requirements of every law are the same. There are going to be some new people who own your estate when you pass away. These individuals are considered to be your lawful heirs.

Each legal heir will inherit a specific share of your estate. The applicable Law of Intestate Succession will hence specify both your legal heirs and the shares of your estate each legal heir is entitled to inherit.

Take, for example, the situation of a married Hindu male. If you are a married man in the Hindu religion, your wife, any sons or daughters you may have, as well as your mother, are your legal heirs. They will each take an equal portion of the estate you leave behind. In the event that you pass away and leave behind a son, a daughter, and a wife, each of them will be entitled to an equal portion of the inheritance. If your daughter has already passed away but is survived by her own daughter, then your grand-daughter will also have a right to the property because of her mother, who was also a previous owner.

People Also Read This: Know About Inheritance Rights in India

Hindu Law of Succession

The Hindu Law of Succession is contained in the following three sources: 

  1. The Indian Succession Act, 1925, which governs the testamentary succession of the estate of a Hindu. 

  2. The Hindu Succession Act, 1956, which governs the intestate succession of the estate of a Hindu. 

  3. The succession of Hindu Joint Family Property, in almost the whole of India except some eastern regions, continues to be governed by ancient religious rules. This is quite a small portion of the Hindu Law of Succession. 

Succession in Hindu Law makes a distinction between two types of Property: (1) Joint Family Property and (2) Self-Acquired Property. In almost all parts of India except portions of the eastern region, the rules of succession governing Joint Family Property, and Self-Acquired Property, are different.  

The Hindu Succession Amendment Act of 2005 has now started giving daughters also succession rights. 

Those who read this Article also Consulted a Lawyer about Succession and Wills. 

The Indian Succession Act, 1925

The Indian Succession Act 1925, is one of the oldest Indian statutes governing succession. It governs intestate succession for Christians, Parsis, and some other religions. 

However, the Indian Succession Act is special for two other reasons. 

  1. It is the uniform law that governs testamentary succession for all religions except Islam. Hence, unless you are a Muslim, the entire process of preparing and executing a will, beginning from you authoring it to your wishes in it being carried out, will be governed by the Indian Succession Act, 1925. 

  2. Even in cases of intestate succession controlled by other religious laws, the Indian Succession Act has a role to play in some respects. For instance, the Act contains the procedure for appointing administrators for your estate. Administrators are responsible for distributing your estate to your legal heirs. Another important function is, succession certificates are issued under the Indian Succession Act. A Succession Certificate issued to a particular person will establish that they are entitled to succeed as a part of your estate.

Conclusion:
 

In conclusion, succession laws play a significant role in ensuring that a deceased person's property is distributed to their heirs in a manner that is both equitable and compliant with the law. Even though the rules may change from country to country or state to state, it is critical to have an understanding of how they operate in order to avoid disagreements and misunderstandings over the distribution of assets. If you want to make sure that your assets go to the people you want them to when you pass away, it's necessary to seek the guidance of an attorney and have a will that's been drawn up carefully. If you are familiar with the laws governing succession, you will be able to make well-informed choices and plan effectively for the future, which will provide you and your loved ones more peace of mind. 

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