Know About Inheritance Rights in India
Property

Know About Inheritance Rights in India

You inherit property when your parents or grandparents, or any other relative pass away. This inheritance can either be through a will or intestate succession. Intestate succession means that the property will pass on to your legal heirs through rules created by the laws of succession. Different personal laws govern the rights of heirs to an estate. Many people do not know how inheritance rights function and this lack of knowledge leads to issues during partition or succession. Through this article, we will tell you how heirs' rights to property function in India. 

 

The Right to Inherit Property

Before we discuss the heir property rights, it is essential to understand the two types of property. Typically, a property is of two types: 

  • Ancestral property: Such property is passed on through generations. An heir typically has a right over an ancestral property by his birth. 

  • Self-acquired property: A self-acquired property is a property that the owner has earned through his efforts. 

A property becomes your own only when you can legitimately claim to exercise some rights over it. For instance, your neighbor's house is not your property because you don't have any rights over it. However, your own house is your property because you can legitimately exercise some rights over it. Thus, acquiring a property means becoming capable of exercising some rights over it. 

Property can be acquired in many ways. You can enter into an agreement with another person, such as a sale deed for the sale of their land to you, and thus acquire that property. There are many other such modes. Inheritance is one of them. Thus, when you inherit a property, the consequence is that you will be able to exercise some rights over it. 

As mentioned above, the Law of Inheritance will decide who the new owners of your estate will be. Certain persons will inherit defined shares of your estate. These persons are known as your' heirs'. Each of your heirs will have a right in your estate. 

Illustration — According to the applicable Law of Inheritance, your son S, daughter D, and mother M are your successors. Each of them is entitled to inherit 1/3 of your estate. Thus, S, D, and M will each have the right to inherit 1/3 of your estate. These are the inheritance rights of S, D, and M about your estate. Once inheritance occurs, S, D, and M will have acquired 1/3 of your estate each. 

 

The Law of Inheritance in India

There is no uniform Law of Inheritance in India. Instead, the Law of Inheritance varies based on one's religion. A small part of the Law of Inheritance is the same for all religions. However, the vast majority of it varies by religion. Thus, Hindus, Muslims, Christians, Parsis, etc., are each governed by their largely by their own, unique Laws of Inheritance. 

The religion of the deceased governs, which Law of Inheritance will govern the succession of their estate. Thus, when a Hindu dies, then the succession of their estate will be governed by the Hindu Law of Inheritance; when a Muslim dies, then the succession of their estate will be governed by the Muslim Law of Inheritance, and so on. 

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Inheritance Rights in Parents' Property

As a child, you generally have the right to inherit some portion of your parents' property. However, your parents are perfectly capable of varying your share, or depriving you of your full share (thus completely disinheriting you), by executing a Will to this effect. 

In India, the traditional mindset has excluded women's rights in parents' property. Before 2005, a daughter was only a member of the family and not a coparcener. A coparcener has the right to inherit the property; a member does not. A member can only ask for maintenance. After 2005, now daughters have also become coparceners and have an equal right to inherit parents' property.

Classically, in some religions, a daughter's marriage deprived them of their right to inherit their parents' property. However, this is no longer the case. Today, marriage alone will not affect your inheritance rights. A married daughter has the same rights to inherit her parents' property as an unmarried daughter does. 

Those who read this Article also Consulted a Lawyer about Property inheritance process. 

Women's Inheritance Rights in India

Women, before 2005, were looked upon as members and not coparceners. Hence, they did not have a right to inherit the property. Let us understand women's inheritance rights in India vis-à-vis the different positions women hold in the family: 

Wife: A wife is entitled to her husband's property. A woman's property rights do not vary after her husband's death. 

Daughter: After 2005, if you are a daughter, you are also a coparcener in your father's property and hence have a right to inherit property. Today, your gender as a woman alone is of little consequence. As a woman, you have more or less the same inheritance rights as a man of your generation. Thus, a woman has essentially the same inheritance rights in her parents' property as a son; a granddaughter has essentially the same inheritance rights in her grandparents' property as a grandson, and so on. A woman can acquire, and hold, property at par with a man. Marriage generally does not deprive a woman of her inheritance rights. 

While rules of Intestate Succession govern the distribution of a property where no will is left behind, it is preferable that you take legal help and prepare and register a Will. Inheritance through a Will is easier and smoother.

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. 

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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]. 

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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. 

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?

(Those who read this Article also Consulted a Lawyer about Property inheritance law.) 

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. 

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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.

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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. 

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.

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.

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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.

Those who read this Article also Consulted a Lawyer about Will and inheritance. 

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.

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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. 

Those who read this Article also Consulted a Lawyer about Will and inheritance.