Legal Guide

All About Property Inheritance Law In India

by Bhavya Choudhary · 3 min read

Property inheritance law in India

Introduction

Many families in India choose partition as their first resort when the matter of inheritance becomes a question. They seek their part through distributed authority over the property or any asset involved. There is a drastic lack of knowledge about property inheritance law in India in most Indian families, which may take the shape of chaotic misunderstandings in the future.

What is the meaning of inheritance?

In general, inheritance means the property is passed on to the descendants when the owner dies in a family.

On the death of an individual, the property titles, mortgage, debts, and other potential rights are inherited by the person who is the successor of the family.

There are two ways, according to property inheritance law in India, by which the successor can inherit the property:

  • Through a will/ testamentary succession: The person who forms the will is called a testator, and the individual in whose favor the will is made is called the legatee.
  • By intestate succession laws: in this case, if a person dies without preparation of a will. The inheritance is devolved among the successors. Each heir gets an equal part, according to the property inheritance law in India.

Types of Inheritance

The successors can inherit the property that is either movable or immovable in two ways as per the property inheritance law in India.

There are two types of inheritance as follows:

  • Will
  • Intestate succession

The will cannot mention the entire ancestral property or asset but only the part that the deceased person legally owns.

The intestate succession inheritance is governed by The Hindu Succession Act or Hindu/Muslim personal inheritance law.

What is the meaning of a Will?

A will is a legal document that is made by the testator to transfer the rights of his estate or assets to another individual who is either family or relative. It expresses the intention of a person and mentions the names of the executor and the heirs. The testator can register a will online or offline accordingly.

It states their desires and wishes to be followed through after their demise. Probate is necessary to grant an executor authority to take the actions mentioned in a will. The validity of a will can be determined through court proceedings only; it is known as probate proceedings.

Property inheritance law in India

The property inheritance law in India solves and deals with succession in two situations:

  • Personal inheritance law with religious implications: This type of property inheritance law in India is applied when there is no will for succession. It is regulated by the Hindu Succession Act 1956 and the Muslim personal law application act (Shariat). In some cases, Inheritance tax has to be paid.
  • The Indian Succession Act 1925: It is used for testamentary succession, which is a will that is formed by an individual expressing his/ her intention after their death. The individual writing a will can register a will and transfer their property which is moveable or immovable under the property inheritance law in India, to any other individual, be it a family member or a non-family member. It is their intention regarding their possession.

Types of properties that can be Inherited

The properties that can be inherited by the heir as per the property inheritance law in India are divided into two categories. They are:

  • Ancestral property: This kind of property is generally inherited from the deceased through 3 or 4 generations or even more. It is not to be mentioned in a will unless there is a part of the property that is owned by the testator.
  • Self-acquired property: This can be defined as the property which the testator has purchased with their income or acquired during their lifetime and can be devolved to anyone according to the testator’s wish as per the property inheritance law in India.

Women’s Rights in Inheritance And Succession

  • A drastic flaw in succession rights is reported nowadays, and it is regarding the unequal rights received by women.
  • There should be a certain amount of amendments made for the restoration of women’s rights.
  • An example of a significant amendment is the Hindu Succession Act 2005, which gave equal rights to daughters as it was given to sons.
  • The property rights of daughters and sons were different before this amendment.
  • Before this, only unmarried daughters had the right to claim the property. But now, the daughters can get an equal part of the ancestral property, even if they are married.
  • If the father passes away without forming a will for an acquired property, the daughter has rights equal to that of a mother, grandmother, brother, or sister according to the amended property inheritance law in India. 
  • They can also talk to a lawyer in cases regarding property rights to solve their queries which fall under the property inheritance law in India in an elaborate way.
  • Women have lesser shares and rights to property than their husbands in Muslim Laws.
  • In Christian law, women are entitled to equal rights in the property as men.

Inheritance Rights of Children and Adopted Children

  • In the case of fathers’ or grandfathers’ ancestral property, a son has rights by birth and cannot be changed until there is a will made opposing it.
  • The son has rights similar to his father’s as defined by property inheritance law in India.
  • In the case of separate property, if the father passes away without making a will, then the son becomes a Class 1 heir, which gives him rights equal to that of his mother, grandmother, and sister or brother.
  • Property rights cannot be acquired by an illegitimate son.
  • Posthumous children are also entitled to the rights of the father’s property, and the only condition under the property inheritance law in India is that the son must be alive at the time of birth. 
  • An adopted child has the same inheritance rights as a biological child. If the child was bestowed something in their name before the adoption, then the property will be in the child’s name.

Inheritance rights of a spouse

  • A wife or a widow will not acquire rights over the husband’s ancestral property in any terms.
  • The rights are given only for self-acquired properties that the husband owned.
  • A widowed mother has a part of her son’s property as deciphered in the property inheritance law in India.

Conclusion:

The inheritance structure is massive and complex, as the families are constantly being misinformed about succession rights. The property must be evaluated first to see if there are any loans or debts in its title. The potential successor may talk to a lawyer to resolve critical issues and avoid the chances of any misunderstanding of property inheritance law in India.

Everything related to property cannot be easily understood by individuals. Inheritance is a crucial matter for any family. Taking legal advice from a property expert lawyer can help them to know the nitty gritty details of property rights and duties.

Bhavya Choudhary

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Bhavya Choudhary

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