Wills / Trusts

What Does the Succession Law Say?

Soumya Shekhar
Soumya Shekhar 05 min read 2914 Views
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Throughout your life, you will acquire multiple properties. All of these properties, taken together, comprise your estate. When you pass away, your estate must find new owners. Otherwise, it will be left in an 'ownerless' estate. 

Thus, after you pass away, your estate will pass to new owners. This process is known as Succession or Inheritance. The new owners of your estate are known as your successors. Succession Law is the law that governs this entire process. Succession is different from Inheritance. Inheritance is the process of the heir inheriting his ancestors' Property. Succession governs how the inheritance would take place. Typically, under Indian Succession Law, a succession certificate is required. Succession Certificate is credible proof that the person obtaining the same is the rightful heir. 


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. 

Different laws of intestate succession govern different religions in India. For instance, Hindu Succession Act, 1956 governs the intestate succession for Hindus.  Indian Succession Act, 1925, governs the intestate succession for Christians. Hence, if you are a Hindu, then the Hindu Succession Act, 1956 will apply; if you are a Christian, then the Indian Succession Act, 1925 will apply, etc.

While different laws apply to different religions, the core provisions are uniform across all laws. Certain persons will become the new owners of your estate. These persons are known as your legal 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.

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. If you pass away leaving behind,a son, daughter and a wife, each of them will be entitled to an equal share. If your daughter is already deceased and is survived by her daughter, then your grand-daughter would also have a right in the property through her deceased mother. 

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.

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