PERSONALISED INVESTMENT MANAGERS

Who are the Legal Heirs if there is no Will?

23 November, 2021


          
            Who are the Legal Heirs if there is no Will?

In India the succession laws for both men and women vary according to their religion as follows. As we follow the Indian Succession Act of 1925 for some religions and the Hindu Succession Act of 1956 for Hindus, there is confusion across religions. The Laws of Intestate succession are different for Hindu, Muslims and Christians.

For Hindus: Which include Buddhist, Jains, Sikhs, Arya Samaj, the law of intestate succession is codified in Hindu Succession Act, 1956. The principles of devolution of property of deceased in this case are as follows:

Male Hindus: There are four classes of Legal heirs. The property will pass on exclusively to legal heirs specified in Class I if there is anyone available.

Class I relatives include wife, son/daughter, mother, son/daughter of predeceased son/ daughter, widow of the predeceased son and few other such relatives. The property would be distributed in equal share to widow, mother and each of children. In case, any of the child has predeceased, his spouse and children will collectively get his / her share. Example, A has died. He has left behind B, his wife, C, his mother and D, elder son, F, youngest son and G, his daughter. E, his middle son had died few years earlier and he left behind his wife E-1, and two children E-2 and E 3. His property would be divided in 6 parts, Each legal heir would get one part. Wife and children of deceased E would collectively get one part.

The legal heirs specified in Class II will get the estate of the deceased only if there is no relative in Class I. Relatives in Class II have been put in sequence and it is provided that the relative named first in list would get full, in preference to the next. Second person will get in Full, only if first named relative is not there and so on. In this schedule, Father is named first and brother/sister as second and so on. As such, if there is no relative in class I and father is there, then he will inherit the estate fully. If father is not there, then brothers and sisters of the deceased shall inherit the estate fully.

Class III and IV are Agnates (relations only through male) and Cognates (relations not wholly through males). In case there are no heirs even in class II, then succession would devolve upon agnates of such deceased, failing which by cognates. If there are no Agnates and Cognates also, the estate will devolve upon the Government. Among the Agnates and so also in cognates, the one closer in relation is preferred.


For Female Hindu: The succession laws for Hindu women are governed by the Hindu Succession Act, 1956 if the woman dies intestate. While Section 14 on page 7 defines what constitutes a woman’s property, sections 15 & 16 lay down the rules and order of inheritance.

Section 14 Property of a Female Hindu to be her absolute proprty:

  1. Any property possessed by a Female Hindu, ether acquired before or after the commencement of this act, shall be held by her as full owner thereof and not as a limited owner. Explanation-In this sub-section, 'property' includes both movable and immovable property acquired by a Female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, Whether a relative or not, before, at or after her marriage, or by her own skil or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
  2. Nothing contained in sub-section (I) shall apply to any propety acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Class I relatives are somewhat similar i.e. Husband, sons and daughters, including children of predeceased son/daughter. If none of them are there, estate shall devolve upon the heirs of the husband. If there are no heirs of husband also, it will devolve upon the mother and father of the deceased, if alive. One special provision is there for property inherited by the female Hindu from her father or mother. Such property would revert to the legal heirs of her father, in case she does not leave behind any son or daughter.

The law also provides that if two people die simultaneously, say in a car or plane accident and exact timing of death of each cannot be ascertained, it shall be presumed that the older one died first, unless contrary is proved. Further, person guilty of murder of any person shall not inherit his property. However, his heirs are not so disqualified.


Muslims: Different personal laws are there for Shias and Sunnis and such laws are not codified in any Statute. For Sunnis following Hanafi Law (most Muslims in India follow this law) personal law restricts legacies to maximum one-third of the estate remaining after taking care of funeral expenses, outstanding wages of domestic servants and debts etc.

The remaining estate is required to be distributed amongst legal heirs. There are three classes of legal heirs:

  1. Sharers: these legal heirs are entitled to a prescribed share of the estate
  2. Residuaries: they will get remaining estate, if anything remains after sharers get their prescribed shares.
  3. Distant kindred: they are other relatives who are neither sharers nor residuaries. They will only get if there are no Sharer or residuary.

Meher i.e. Dower promised by husband, would be 1st charge (priority debt), if the same has not been paid by deceased during his lifetime.


Christians: As per the Indian Succession Act, 1925 the widow/widower inherits one-third share and balance goes to the lineal descendants. In case there are no lineal descendants, then one-half goes to the widow / widower and balance to the other relatives, i.e. prescribed as kindred.

Amongst the lineal descendants, each child or if pre-deceased, his children collectively will get equal shares. In the kindred, the first preference is given to the father and in case he is predeceased then mother, brother and sister (or their children together if any one is predeceased) equally.


Conclusion:

While it's a good idea to write a will, most people fail to do so despite having property, both movable and immovable, in their names. In most cases, a will ensures that the assets are transferred to the desired beneficiaries, which may not happen if they die intestate, especially in case of Hindu women. As we saw the succession laws for women vary according to their religion. Its always a good idea to consult with a good firm for your estate planning or writing your WILL. Obviously, you want to rest assured that there are going to be no surprises coming your near and dear ones if something happens to you.

If you want to have conversations around what we feel could be ideally suited to your financial goals. We are certified financial planners and pride ourselves on getting alpha returns to our clients and peace of mind on their deployment of financial plans.

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Bibliography

Legal heirs of a woman if she dies without will, THE ECONOMIC TIMES | Legal rights of husband over property of Hindu wife who dies without will, THE ECONOMIC TIMES | Distribution of Assets in case a person dies without a will (Intestate), CHARTERED CLUB


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