INTESTATE SUCCESSION
INTESTATE SUCCESSION refers to the law of the State providing for the inheritance of property from a person who dies without leaving a will. Thus, to carry out a "intestate succession" simply means to transfer something after the owner has died and in accordance with the State law of intestate succession.
Who Gets the Property by Intestate Succession?
Generally, heirs are grouped in classes, which are created to determine the order of whom the property will transfer to and the share of property among individual heir. The share of the property depends on who survives the decedent. For example, in most states, if a person dies with no surviving spouse but with three children, the children will take the entire estate. But, if the person dies with a surviving spouse and three children, the surviving spouse may take half of the entire estate and the other half to three children. The classes of heirs include the following:
- The decedent's surviving spouse
- Descendants (children, grandchildren, and so on)
- Parents
- Descendants of decedent's parents (siblings, nieces, and nephews)
- Descendants of grandparents (aunts and uncles)
Property and Assets Pass by Intestate Succession
It's important to note that not all types of property pass by intestate succession. Property that you own alone in your name that would have passed through a will affects intestate succession. However, certain types of property are not considered to be part of the decedent's estate for purposes of intestate succession laws, such as: property held in a living trust, life insurance proceeds, payable-on-death (POD) bank account, and any property held in joint tenancy with right of survivorship. Be sure to check your state's intestate succession laws because different states have different list of property and assets that can pass by intestate succession.
Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. It implies the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them.
Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, subject to many rules. Such rules may be based on the will of a deceased person. However, there are cases in which a will cannot be expressed and eventually, there needs to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. There can be no doubt, however, that these rules primarily are the characteristics of the social conditions in which that individual lived. They represent the view of society at large as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen.
Succession of A Hindu Male Dying Intestate Under The Hindu Succession Act:
Sections 8 to 13 of the Hindu Succession Act, 1956 lay down the general rules as to the order of succession when a Hindu male dies intestate. Section 8 lays down certain rules of succession of property of a Hindu male who dies intestate after the commencement of the Act. These rules are to be read along with the Schedule as well as other Sections pertaining to the same (Sections 9 to 13).
Section 8 lays down as follows:
Section 8 : General rules of succession in the case of males - The property of a male Hindu dying intestate shall devolve according to the rules set out in this chapter:
(a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no preferential heir of Class I, then upon the preferential heirs being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being the agnates specified in Section 12; and
(d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Section 13.
Thus, Section 8 groups the heirs of a male intestate into four groups and lays down that the property first devolves upon the heirs of Class I of the Schedule. They are the son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son and widow of a predeceased son of a predeceased son. All these heirs inherit simultaneously. If heirs of Class I are not available, the property goes to the enumerated heirs specified in Class II of the Schedule, wherein an heir in a higher entry is preferred over an heir in a lower entry.
In the absence of heirs of Class I and Class II, the property devolves on the agnates and cognates of the deceased in succession. Now, one person is said to be the agnate of the other if the two of them are related by blood or adoption wholly through the males. Similarly, one person is said to be the cognate of the other if the two of them are related by blood or adoption, but not totally through males, i.e. there has to be some intervention by a female ancestor somewhere.
Now, the term 'property' includes all those properties of the deceased intestate that is heritable under the Act. It includes his self-earned property as also his share in the Mitakshara coparcenary if he is survived by any of the female heirs or daughter's son as mentioned in Class I of the Schedule. It also includes the property that he might have inherited from his grandfather or father after the Act came into force.
Intestate Succession among Hindus
The Hindu Succession Act, 1956 was passed to amend and consolidate the law relating to intestate succession among Hindus. It extends and applies to all the persons who practice the religion or who are defined as Hindu’s (Buddhists, Jains and Sikhs) under the legal regime. The act was further amended in 2005. As per the provisions of this Act, if a Hindu male dies intestate then the following persons can make a claim:
First Claim : Class I legal heirs. They have equal rights to the assets.
They are mother, spouse and children. If any child has died, then their children and spouse have an equal share;
Second Claim : In the absence of Class I heirs, the Class II heirs can make a claim.
They are, father, sibling, living children’s grandchildren, sibling’s children etc.;
Third Claim : In the absence of Class I and Class II heirs, the Agnates can make a claim. Agnates can be defined as the distant blood relatives of male lineage (fathers’ side).;
Fourth Claim : In the absence of Class I, Class II heirs and Agnates, the Cognates can make a claim. Cognates can be defined as the distant blood relatives of female lineage (mothers’ side).
In the case of a Hindu female the following persons can make a claim:
First Claim : the sons and daughters and the husband can make a claim;
Second Claim : In the absence of the first claimants, the heirs of the husband can make a claim;
Third Claim : In the absence of the first and second claimants, the mother and father can make a claim;
Fourth Claim : In the absence of the above-mentioned claimants, the heirs of the father;
Fifth Claim : And even in the absence of the heirs of the father, the heirs of the mother can make a claim.
In the case a Hindu dies intestate and without any heirs as above-mentioned, the property devolved to the State Government under due procedure of the law.
Intestate Succession among Muslims
In case a person governed by the Mohammedan Law dies intestate, the following persons can make a claim: sharers and residuaries.
Sharers are basically those heirs entitle to a certain specific share whereas Residuaries are those that acquire the remainder of the property.
In the absence of sharers and residuaries, a class of persons known, as Distant Kindred can make a claim to the property of the deceased.
Intestate Succession among Christians
Section 32 of the Indian Succession Act, 1925 provides that a Christian’s legal heirs are husband, wife or the kindred of the deceased.
Heirs in Class I
1. The adopted children (son or daughter) are also to be counted as heirs whensuccession is done.
2. The children born of void or voidable marriage (by effect of section 16) are deemed to be legitimate children and are thus entitled to participate as sharers in the succession to the intestate.
3. The widow inherits simultaneously with the other heirs and in case there are more than one widow, together they are entitled to one share which is to be divided equally amongst them.
4. The widow is entitled to a share from the property of the intestate even is she remarries after his death.
5. The widow of a predeceased son inherits with the other heirs. However her right (along with the children of the predeceased son) is dependent upon the share that the predeceased son would have been entitled to had he been alive. Also, she is excluded from the share if she has remarried before the death of the intestate.
6. The daughter inherits simultaneously with the other heirs and gets the share as that of a son. She takes the property in her individual capacity and not in the capacity of a woman’s estate. Also, she is entitled to the property of the intestate even if she is married.
7. The mother inherits simultaneously with other heirs. She takes her share absolutely (because of section 14) and not with any limited interest. Also it has been held that unchastity of mother is no bar to her succeeding as heir to her son. She is entitled to inherit even if she is divorced or is remarried. Here the term mother includes adoptive mother also.
8. However, if there is an adoptive mother, the natural mother has right to inherit the share of the intestate. A mother is also entitled to inherit the property of her illegitimate son.
Heirs in Class II
1. All heirs in Class II take cumulatively and not simultaneously i.e. they succeed only in the order of the Entries I to IX. An heir in the higher entry excludes all heirs in the lower entries.
2. The father in entry I includes an adoptive father. However, a father is not entitled to any interest in the property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled to inherit from his son born of a void or voidable marriage (under section 16). Also, a step father in not entitled to inherit from his step son.
3. All heirs in one entry of Class II share the property simultaneously and equally and also to the exclusion of all heirs under subsequent entries.
4. All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry. Here the term brother include both full and half brother. However when there is a full brother, he is always preferred to a half brother 13 where, half brother means son of the same father but different mother. Uterine brother 14 is not entitled to share the intestate’s property. However when the intestate and his brother are illegitimate sons of their mother, they are related to each other as brothers under this Entry.
Agnates
In case a hindu male passes away intestate and leaves no class 1 or class 2 heirs, then the property would devolve on agnates. A person is said to be an agnate of another if the two are related by blood or adoption wholly through males. Agnate relationship does not extend to relationship by marriage and is restricted to relationship by blood. Also, agnate does not include widows of lineal descendants of the intestate.
Cognates
If a Hindu male passes away without a Will and has no class 1 or class 2 heirs or agnates, then the succession would be through cognates. Cognates are ones who are related to the intestate by blood or adoption but not wholly, through males. Thus mother’s brother’s son and brother’s daughters son are cognates, eligible for heirship.
Section 9. Orders of succession among heirs in the Schedule :
Among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
Section 9 explicitly points out the order of succession between the Class I and the Class II heirs and also among the Class II heirs interse.
According to this Section, Class I heirs may be termed as preferential heirs of the intestate because the property first devolves upon them on the death of the intestate. All the Class I heirs succeed simultaneously and there is no question of any preference or any priority among them. However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the nine Entries.
However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in Class I.
For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brother's son, the sister being an heir in Entry II of Class II will get preference over his brother's son who is an heir in Entry IV of Class II.
Section 10. Distribution of property among heirs in Class I of the Schedule :
The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:
Rule 1 - The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2 - The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3 - The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4 - The distribution of the share referred to in Rule 3-
i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion;
ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do not mention any priority among them, but it nowhere follows that every individual heir who succeeds as a heir in Class I is entitled to an equal share of the property along with other heirs of the Class. The computation of the share of each is done in accordance with Section 10 which may constitute the Statute of Distribution applicable to heirs in Class I. It should also be noted that the Act tries to put the males and the females on equal footing. So it allots the shares to the males and the females pari passu.
The object of Section 10 is to deal with the amount of shares each person will be entitled to when there are more than one to inherit simultaneously. The widow, the son, the daughter and the mother will inherit to the property. However, this does not mean that each one of them will get 1/4th of the property. The four rules given in this Section are explanatory to the extent of understanding how much share each one will get.
The rules are:
1) The widows, if there are more than one, shall take together only one share and [read with Section 19(b)] inherit that share equally as tenants-in-common and not joint tenants.
2) When there are more than one son, each son will get a share and similarly each daughter will get a share and mother will also get a share. Thus this is based on the Principle of Equalization.
3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be entitled to take together a share of the property of their father or mother as the case maybe, and divide them equally among themselves. The family of the predeceased son would be entitled to one part that the predeceased son would have been entitled to, had he been alive. Same thing applies to a predeceased daughter. Thus these heirs succeed to the intestate's property not as per capita but as per stripe.
4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of a propositus, she will take the share of the predeceased son equally with her sons and daughters.
The four rules in Section 10 are to be read in consonance with Section 19 which gives the two basic rules in case there is more than one heir succeeding to the property of the intestate.
The rules are:
(a) save as otherwise expressly provided in the Act, per capita and not per strip.
(b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the contrary.
Section 11. Distribution of property among heirs in Class II of the Schedule :
The property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally.
This Section provides that when there are more than one heirs in one entry of Class II, they shall inherit equally. For example, Entry III contains four heirs:
(a) the daughter's son's son
(b) the daughter's son's daughter
(c) the daughter's daughter's son
(d) the daughter's daughter's daughter.
Thus according to this Section, they all share equally. It should be noted that the legislation does not lay down any rule of discrimination between any male or female. If two heirs are enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is preferred over half-blood.
In the case of Arunachalathammal v. Ramachandran, it was contended that the different heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry and they do not inherit simultaneously but here again there is a question of preference i.e. the first subdivision inherits and then in its absence, the later. The question arose because there were, in his case, one brother and five sisters of the intestate and no other heir and the brother contended that in a brother being in subcategory (3) of entry I, was to be preferred over sister who was in subcategory (4) of entry I and thus he was entitled to the full property.
However the same was negated and it was held that all heirs in an entry inherit simultaneously and there is no preference to an heir in a higher subcategory within an entry to an heir in a lower subcategory in the same entry. Thus we find that the equality is between every individual heir of the intestate and not between the sub-division in any particular entry. In fact, the court went on to say that there were no subdivisions in any entry in Class II. They were just roman numerals representing the heirs in the entry.
Section 12. Order of succession among agnates and cognates :
The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:
Rule 1 - Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2 - Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degree of descent.
Rule 3 - Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously.
This Section deals with the order of succession among agnates and cognates. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of succession of cognates come only when there are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II.
Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the fewer or no degree of ascent shall be preferred. Rule 2 lays down that where the degree of ascent is the same or none, the one with fewer or no degree of descent shall be preferred. Rule 3 lays down that in case of a tie even after applying Rules 1 and 2, they shall take simultaneously.
In accordance with the above three rules, the agnate and cognate relationship maybe categorized as follows:
Agnates:
(a) agnates who are descendants, for example, son's son's son's son and son's son's daughter.
(b) agnates who are ascendants, for example, father's father's father and father's father's mother.
(c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father's brother's son and father's brother's daughter.
Cognates:
(a) cognates who are descendants, for example, son's daughter's son's son and daughter's son's son's son.
(b) cognates who are ascendants, for example, father's mother's father and mother's father's father.
(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father's sister's son and mother's brother's son.
In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals.
Section 13. Computation of degrees.
1) For the purpose of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.
2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
3) Every generation constitutes a degree either ascending or descending.
Section 13 lays down the rules for computation of relationship between the intestate and his agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of degrees of relationship with the intestate as the starting point. There is no discrimination or preference between male and female heirs.
The second rule states that the computation of the degrees of ascent and descent are to be made inclusive of the intestate. The relationship is to be traced from the propositus on terms of degrees with a propositus as terminus a quo, i.e. the first degree.
However, the order of succession among agnates and cognates is not determined merely by the total number of degrees of ascent and descent. It is subject to and regulated by Section 12 of the Act.
The following are examples of rules of computation of degrees:
(a) The heir to be considered is the father's mother's father of the intestate. Hence there is no degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the intestate's father, (iii) that father's mother and (iv) that mother's father.
(b) The heir to be considered is the son's daughter's son's daughter of the intestate. Hence there is no degree of ascent but there are five degrees of descent represented by (i) the intestate, (ii) the intestate's son, (iii) that son's daughter, (iv) that daughter's son and (v) that son's daughter.
(c) The heir to be considered is the mother's father's sister's son (i.e. the mother's father's father's daughter's son) of the intestate. He has four degrees of ascent represented in order by (i) the intestate, (ii) the intestate's mother, (iii) that mother's father and (iv) that father's father and two degrees of descent i.e. (i) the daughter of the common ancestor and (ii) her son (the heir).
What is to be remembered is that when degrees, both of ascent and descent, are to be computed in case of collateral, the degrees of ascent computed from the intestate are inclusive of him, but in counting the degrees of descent from the ancestor, only generations of descent are computed, that is, the ancestor does not constitute a degree of descent.
Succession of A Hindu Female Dying Intestate Under The Hindu Succession Act.
The great ancient lawgivers Manu and Baudhyana had described the good woman as a profoundly non-autonomous self, ruled by father in childhood, by husband in youth, by son in old age. In the 19th century debates, on the contrary, she came to be re-envisaged as a person with a core of inviolate autonomy, possessing a cluster of entitlements and immunities, even when the family, the community or religion refused to accept them. The demand for the new laws stemmed from an understanding about Indian a necessary, autonomous core of female personhood that the state must underwrite.
Under the Hindu law in operation prior to the coming into force of the Act, a woman's ownership of property was hedged in by certain delimitations on her right of disposal and also on her testamentary power in respect of that property. Doctrinal diversity existed on that subject. Divergent authorities only added to the difficulties surrounding the meaning of a term to which it sought to give technical significance. Women were supposed to, it was held and believed, not have power of absolute alienation of property. The restrictions imposed by the Hindu law on the proprietary rights of women depended upon her status as a maiden, as a married woman and as a widow.
They also depended upon the source and nature of property. Thought there were some fragmented legislation upon the subject (regard being made to the Hindu Woman's Right to Property Act, 1937), the settled law was still short of granting a status to woman where she could acquire, retain and dispose off the property as similar to a Hindu male. The Hindu Succession Act, 1956 and particularly Section 14 brought substantial change, thus, upon the aspect of a right of a Hindu female over her property and thereby settled the conflict.
Section 15. General rules of succession in the case of female Hindus
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, -
(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) Secondly, upon the heirs of the husband ;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother
(2) Notwithstanding anything contained in Sub-Section (1), -
(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the order specified therein, but upon the heirs of the father; and
(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-Section (1) in the order specified therein, but upon the heirs of the husband.
This Section propounds a definite and uniform scheme of succession in the property of a female Hindu who dies intestate after the commencement of the Act. The rules laid down under this Section are to be read with Section 16. This Section groups the heirs of a female intestate into five categories as laid in sub-Section (1).
However sub-Section (2), similar to the scheme of Section 14, is in the nature of an exception to the general rule as laid in sub-Section (1). The two exceptions are, if a female dies without leaving any issue then,
(i) in respect of property inherited by her from her father or mother, that property will devolve not according to the order laid down as in sub-Section (1) but upon the heirs of her father, and
(ii) in respect of the property inherited by her from her husband or father-in-law, that property will not devolve according to the order laid down in sub-Section (1) but upon the heirs of her husband.
It is important to note that the two exceptions herein referred are confined to only the property inherited from the father, mother, husband and father-in-law of the female and does not affect the property acquired by her by gift or other by other device. The Section has changed the entire concept of stridhana and the mode and manner of acquisition of property by the female, which earlier determined how the property would be inherited, has been changed and amended by the Section. Considering Section 17, it is important to note that Section 16 does not apply to persons governed by Marumakkattayam and Aliyasantana laws.
As specified in the beginning of the sub-Section (1), in the devolution of heritable property of a female intestate, those in a higher entry are preferred to those in a lower entry.
The order of succession, as by the effect of rules under Section 15 can be summarized as follows:
(1) the general order of succession laid down in entries (a) to (e) in sub-Section (1) applies to all property of a female intestate however acquired except in case of property inherited by her from her father, mother, husband or father-in-law.
(2) In case of a female intestate leaving a son or a daughter or a child of a predeceased son or of a predeceased daughter, that is leaving any issue, all her property, howsoever acquired, devolves on such issue regardless of the source of acquisition of the property and such issue takes the property simultaneously; and if the husband of the intestate is alive they take simultaneously with him in accordance with entry (a). In such a case, sub-Section (2) does not apply.
(3) In case of a female intestate dying without issue but leaving her husband, the husband will take her property, except property inherited by her from her father or mother which will revert to the heirs of the father in existence at the time of her death.
(4) In case of female intestate dying without issue property inherited by her from her husband or father-in-law (the husband being dead), will go the heirs of the husband and not in accordance with the general order of succession laid in sub-Section (1).
(5) In case of a female intestate dying without issue property inherited by her from her father or mother will revert to the heirs of the father in existence at the time of her death and not in accordance with the general order of succession laid down in sub-Section (1).
Section 16. Order of succession and manner of distribution among heirs of a female Hindu :
The order of succession among the heirs referred to in Section 15 shall be and the distribution of the intestate's property among those heirs shall take place according, to the following rules, namely:
Rule 1 - Among the heirs specified in sub-Section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously.
Rule 2 - If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.
Rule 3 - The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-Section (1) and in sub-Section (2) to Section 15 shall be in the same order and according to the same rules as would have applied if the property would have been the father's, the mother's or the husband's as the case maybe, and such person had died intestate in respect thereof immediately after the intestate's death.
Rule 1 explicitly declares that among the heirs enumerated in entries (a) to (e) of Section 15, those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously.
Rule 3 is applicable only when succession is in terms of entry (b), (d) or (e) of Section 15(1). This rule 3 is to be invoked when under rule 1 the heirs of the husband or the father or the mother are to be ascertained for purpose of distribution of property.
Consolidation of Assets
In case of intestate death, there are complexities in getting on record all the assets that the person owned. Consolidation of the assets and formulating an effective plan to protect them is a very critical step. Then, the next step is to approach the institutions and get the assets released.
In case of Movable Assets
Movable Assets are basically property of any description except immovable property. They include assets like jewelry, cars, bank balance and investments made with financial institutions. They follow the law of domicile of the intestate at the time of his/her death.
Process
In case of bank balance and investments, the KYC form requires a nominee. if the name of the nominee is provided for at the time of investment, the financial institutions will release the funds to the nominee mentioned in the form.
A nominee is, by nature a trustee of the funds, who is entrusted with the responsibility to safeguard the funds till the legal heir is determined. In case there is no nominee, then the person making claim will be required to produce a succession certificate.
Once the movable assets are consolidated, the letters of administration or succession certificate may be obtained from the competent court by a person making a claim to the assets.
In case Immovable Assets
Immovable Assets are basically property in the nature of land, building, etc. They follow law of situs that is the place where the property belongs. In the event the title is not disputed, the heir can get the ownership changed at the relevant district authority that has jurisdiction over the property.
Process
In the first instance, the heir/heirs will have to ensure that there are no pending debts.
Then, upon confirmation of the ownership of the property, the next step is to apply for mutation of the property. Mutation essentially updates the government records. The application for mutation is made with a local authority. The sub-divisional magistrate would have jurisdiction in case a challenge is preferred. In case of multiple heirs, the mutation order would contain the names of all the heirs. In such case, in my opinion, it would be better to mark the division of property among them at the time of mutation itself to avoid unforeseen consequences.
Recently, the Delhi High Court in the matter of Harish Chander Gupta & Others v. Rakesh Gupta & Others, [2018] [1] has observed the following, “if a person dies after passing of the Hindu Succession Act, 1956 and there in no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ‘ancestral’ property that is, a property belonging to his paternal ancestor.
Conclusion
In order to avoid the complications and consequences of intestate succession, the people in India should adopt to estate planning. Estate planning has multifold benefits such as, it avoids any dispute within the family, guarantees smooth transition of assets from the deceased to the heirs, protects the wealth of the deceased, promotes better tax planning etc.
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PG - 18122019
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