Real estate in India is administered and impacted by a combination of central and state-specific laws. The right of inheritance is passing the titles, rights, debts, property, and obligations to another person on the death of an individual. Considering how priceless real estate assets are currently, legal heirs must safeguard the property/asset after the death of the person in whose name the property was registered.
Inheritance is the practice of transferring property, titles, debts, rights, and obligations to the legal heir of a person upon the death of that person either by way of ‘Will’ or through the prevalent laws of succession. The regulatory laws of inheritance differ among societies as per their religion and have revolved over time.
There is no bigger pain than losing a loved one especially a family member, however, the same can get miserably painful in case there is a family dispute with respect to the inheritance of property. The same arises because of deficiency of legal knowledge on property inheritance in India. According to reports, deficiency in legal knowledge is the principal reason for family partition and therefore, it is critical to recognise the prevalent property inheritance rights of legal heirs to minimise the pain of loss of a loved one.
Considering how priceless real estate assets are currently, it is quite naturally important for legal heirs to safeguard the property asset after the death of the person in whose name the property was registered. Legal heirs must go through legal formalities to acquire the ownership of that property.
Legal formalities to get the property transferred may differ depending upon the nature of the property, legal heirs’ rights over the property, the number of legal heirs and many others etc.
A testament or more popularly known as will has been defined under the Indian Succession Act, 1925 as a legal document or a declaration indicating the will of a person. This legal document contains details like the names of 1 or more persons who are to acquire, manage and benefit from his estate after his death.
A certified copy of the Will that is certified with the seal of a competent court of law with a grant of administration of the property to the legatee/ executor of the testator is called a ‘probate’. A probate, since it is a certified document of the court acts as an evidence of the executor's authority.
A court may initiate a legal proceeding also called as probate proceedings after the death of the person who made the will (executor/ legatee) to determine the authenticity of the Will that has been created. Ordinarily, during the course of the court proceedings, the witnesses are asked to appear in the court to testify upon the authenticity of the Will.
A Will can only be created by a competent person with a sound mind and who is above 18 years of age i.e. not a minor. Additionally, the probate court does not deal with the merits of the case but only decides upon the validity of the Will in question.
Under Indian law, an heir is a person determined to succeed to the estate of an ancestor who died intestate i.e. without creating a will. In India, legal heir is popularly used to refer to an individual who supersedes to property, either by law or a will.
It is crucial to identify a legal heir because they are the ultimate successors over matters relating to insurance claims as well as property inheritance.
The following can be legal heir under the Hindu Succession (Amendment) Act, 2005:
In case, there is no heir left from Class I, then the property goes to the heirs of Class II, who are the relatives defined under the Indian Succession Act. The defined Class II heirs are:
The property of a female Hindu dying intestate will get transferred to:
Under the Muslim Personal Law (Shariat) Application Act, 1937 the following can be legal heir:
Under Section- 32 of the Indian Succession Act, 1925, a Christian legal heir is a wife, a husband or the kin of the deceased, for instance,
Under Section- 54 of the Indian Succession Act, 1925, a legal heir under the Parsi personal laws are as follows:
In case, a Parsi Indian dies intestate with no lineal descendants nor a widow or a widower the following are entitled to the property:
In a landmark judgment in 2008, the Supreme Court of India in Vidyadhari v/s Sukhrana Bai permitted the inheritance right to the children born in a live-in relationship and thereby acknowledged them with the “legal heir” status.
The first step is to apply for a Legal Heir Certificate under the District Tehsildar Officer via the District Court having the jurisdiction over the area.
The second step is based on the report of the Village Administrative Officer as well as the Revenue Inspector of the District and after the mandatory inquiry, a certificate legal heirship is issued to the concerned person by the District Authority. The certificate provides the names of all the legal heirs of the deceased person.
The following documents/ details are required to get a legal heir certificate:
The right of inheritance is primarily a transfer of the individual’s property, debts, titles, rights, and obligations to another individual upon the death of that person.
An Indian can succeed to or inherit one’s property and etc. in 2 distinct ways:
1. Through a will which is the testamentary succession-The individual who creates the will is called the testator and the individual in whose favour the will is created is known as the legatee.
2. Through the laws of succession when person dies intestate-In situations where the person dies intestate i.e. without creating a will then that person’s property is transferred among his legal heirs by the applicable laws of intestate succession.
The laws of inheritance in India are applicable based on types of succession and religion which include:
A ‘Will” can be created by a property lawyer against self- acquired properties in India.
In India, the following properties are recognised by the Indian property laws:
Under Indian succession laws, a son has a right in his father’s and grandfather’s property by birth. The son has equal rights as does his father in his grandfather’s ancestral property. Besides this, in a situation where the father has a self- acquired property or a separate property and he dies intestate, then the son who is a Class I heir will have succession rights equal to his living mother, sister, grandmother and brother.
However, an illegitimate son does not have a right in his father’s property. Besides this, a child who is still not born but in the mother’s womb has a right in his father’s property even if he has died intestate. But the sole condition to avail the right to succession is for the father to have be alive when the child was born.
The property rights for a son and a daughter were totally different before 2005, earlier, only an un-married daughter had a right to share in the ancestral property. However, after 2005, a daughter was granted similar rights as well as duties as that of a son. A daughter has equal share of right in the ancestral property.
Besides this, in a situation where the father has a self- acquired property or a separate property and he dies intestate, then the daughter who is a Class I heir will have succession rights equal to her living mother, sister, grandmother and brother.
Every grandchild including both grandson and granddaughter have the equal right to share in the ancestral property of their grandfather with their father.
In a situation where the property of grandfather is either self- acquired or separate, then the grandson will have inheritance right only when his father died before his grandfather.
A wife has no right to share in the ancestral property. As a result, a widow has absolutely no right over her husband’s ancestral property. However, since a wife is a Class I heir, the wife will have the right in the self- acquired property of her husband. Moreover, even a widowed mother also has a right in her son’s property.
In India, the rights of inheritance of an adopted child are quite similar to that of a natural born child.
However, once adopted, the child relinquishes his/ her property rights in the biological family however if the child obtains a property before the adoption, then the property shall continue to be in his/ her name.
Immediately after the demise of a person, before splitting the property and assets of the deceased, the potential successors must ensure that there is no debt attached to the property/ assets of the deceased.
Now, once the legal heirs to the property/ assets of the deceased are confirmed, the legal heir must register for the mutation (change of title ownership) of property in his/ her/ their own name. The procedure of mutation revises the government records by transferring the title of property. The legal heir after acquiring the property, can reside in, lend or sell the property according to his/ her/ their own desire.
Who can inherit a property when there is no ‘Will’?
In situations where no Will has been made, the inheritance of property follows the intestate succession laws as mentioned in the Indian Succession Act of 1925. However, inheritance laws who inherit property of a person dying intestate differ for different religions.
Can parents completely disown their son in India?
Yes, in case the property of the parents is self acquired by them, then the son has no legal claim in it.
None the less, it is pertinent to note that if the parents die intestate, the son, no matter how miserable his relationship was with his parents, will acquire the property as per law.
#tags: Inheritance Law, Rights of Inheritance, Property, Heirs, Rights of Spouse, Rights of Children