Legal Guide

Intestate Succession: Understanding the Basics

by Mansi Gehrana · 3 min read

Intestate Succession

Introduction

  • This situation is known as intestate Succession, when a person passes away without leaving a Will or Trust. Their assets are distributed to selected family members who are entitled to an inheritance under the laws of the State where the decedent resided at the time of death. The location they referred to as their home.
  • When a person dies with a valid Will, their assets are distributed between the beneficiaries named in the WillWill and any trusts they may have created. Always register a Will to avoid any ambiguity in the future. 
  • Intestate succession laws are designed to identify and rank heirs to divide the decedent’s assets in a fair, legal, and structured way.

What is Succession?

In general terms, Succession refers to inheritance. Succession arises after a person passes away. Marriage, divorce, adoption, division, intestacy, Succession, and other personal law-related issues are covered by the Indian Constitution through Entry 5 in List III. Therefore, issues coming under the purview of personal laws may be regulated by either the State or the Center.

Most of the time, The Hindu Succession Act specifies the succession laws that apply to Hindus, Sikhs, Buddhists, Jains, etc. It includes the vast majority of Indians. The Sharia Law, which is relevant to Muslims, comes next. The Indian Succession Act is the next, and it pertains to Christians and other people who are not protected by the Hindu Succession Act and Sharia Law. In a nation as dynamic and diverse as India, Succession is a highly delicate topic. It could be either.

  1. Testamentary Succession- dying with a Will.
  2. Intestate Succession- dying without a Will. 

Where does Intestate Succession apply?

A person’s wishes regarding his estate are essentially expressed in a Will, which also arranges for its transfer after his death. When a person dies without making a Will or when that WillWill cannot be used to dispose of an asset because it contains an invalid or illegal bequest, that person is said to have died intestate. Both full and partial intestacy is possible.

If a person passes away intestate, the Indian Succession Act specifies how to transfer their possessions. According to the pertinent personal legislation, the assets become vested. Given that certain assets are more profitable than others, there are significant complications when there are multiple heirs.

Intestate Succession for Hindus

Hindu intestate succession law was amended and consolidated in 1956 with the passage of the Hindu Succession Act. It encompasses and applies to everyone who practices their religion or who is legally categorized as a Hindu (including Buddhists, Jains, and Sikhs). In 2005, the law was changed once more.

  1. Hindu Male Intestate Succession 

According to the terms of this Act, the following parties may file a claim in the event that a Hindu man passes away intestate:

  • First Claim: Heirs of Class I legally. They are each entitled to the assets equally.
  • Mother, husband, and kids are who they are. When a kid passes away, their spouse and children each receive an equal part;
  • Second Claim: The Class II heirs may assert a claim in the absence of the Class I heirs. They include the father, sibling, grandchildren of living children, children of siblings, etc.;
  • Third Claim: The Agnates may assert a claim in the absence of Class I and Class II heirs. Agnates are the male lineage’s distant blood relatives on the father’s side.
  • Fourth Claim: The Cognates may assert a claim in the absence of Class I, Class II, and Agnates. Cognates are the female line’s distant blood relatives on the mother’s side.
  1. Hindu Female Intestate Succession

The following people may assert their rights in the instance of a Hindu woman:

  • First Claim: The spouse, sons, and daughters may file a claim;
  • Second Claim: If the first claimants are not present, the husband’s heirs may file a claim;
  • Third Claim: The mother and father may file a claim if the first and second claimants are not present;
  • Fourth Claim: The father’s heirs, in the absence of the aforementioned claimants;
  • Fifth Claim: The mother’s heirs may also assert a claim even in the absence of the father’s heirs.

In 2005, the Hindu Succession (Amendment) Act, which amended Sections 4, 6, 23, 24, and 30 of the 1956 Act, went into effect. This amendment’s main goal was to introduce rules granting daughters and wives the same rights as male coparceners, including subjecting them to the same responsibilities and restrictions. In the past, although full property ownership by the female members was desired, the only property to which a woman was entitled was the “stridhan.” The laws for female intestate Succession were more stringent before this amendment. 

When a Hindu passes away intestate and without any of the aforementioned heirs, the property passes to the State Government following the correct procedures of Hindu Law.

Intestate Succession for Muslims

  • Sharers and residuary are the only parties eligible to file a claim if a person subject to Mohammedan Law passes away intestate.
  • The heirs entitled to a specified share are known as “sharers,” and “residuaries” inherit the remaining assets.
  • A class of people known as Distant Kindred might claim the deceased’s property in the absence of sharers and residuary.

In the case of intestate Succession, the widow of the deceased is entitled to one-fourth of the inheritance if she is childless and one-eighth of the property if she is a parent. In contrast, a widower receives a half portion of the decedent’s estate if there are no children and a quarter share if there are. A son is supposed to get twice as much as a daughter does. Only one daughter receives her father’s portion of the estate.

Intestate Succession for Christians

According to Section 32 of the Indian Succession Act 1925, a Christian’s legal heirs are their spouse or a close family member.

Conclusion

The people of India should practice estate planning to prevent the difficulties and effects of intestate Succession. Estate planning offers several advantages, including preventing family conflicts, ensuring a smooth transfer of assets to the heirs, protecting the deceased’s wealth, encouraging better tax planning, etc.

Dying without creating a Will may create chaos among the family members. To take the help of a legal expert in making & registering your Will get online advice.

Mansi Gehrana

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Mansi Gehrana

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