Blog

Intestate succession refers to what happens to someone’s assets (property, money, etc.) when they die without a valid Will. The rules for intestate succession are primarily governed by the personal laws applicable to the deceased individual’s religion or community. Furthermore, inheritance without a Will can lead to complex legal proceedings and disputes among family members, highlighting the importance of understanding intestate succession laws in India. Hindus are governed by the Hindu Succession Act, 1956. This Act applies to individuals who identify with Hinduism, including its various branches such as Buddhism, Jainism, Sikhism, Virashaivism, Lingayatism, as well as followers of the Brahmo, Prarthana, or Arya Samaj movements. If a Hindu male passes away without a Will (intestate), his assets will be distributed according to the Hindu Succession Act, 1956 in a following way:  Firstly, the heirs outlined in Class I of the Act’s Schedule will inherit equally. These heirs comprise the son, daughter, widow, and mother. If the deceased’s son is deceased, then the son’s children and widow are entitled to a share. Likewise, if the deceased’s daughter is deceased, her children inherit the share. All these heirs receive equal shares simultaneously. In case there are no living heirs from Class I, the assets will then pass to the legal heirs specified in Class II of the Schedule. These heirs include the father, and if the father is deceased, then the siblings of the deceased Hindu male will inherit the assets. If a Hindu woman passes away without a Will (intestate), the distribution of her assets depends on whether they are self-acquired or inherited. For self-acquired property: Her husband and children will inherit equally. If the son and daughter are deceased, then their children will be entitled to the share. If the children and husband are deceased, then the husband’s heirs will inherit the property. For inherited property: If the property is not self-acquired, it initially devolves upon the children equally. Again, if the son and daughter are deceased, their children will inherit. If the children are deceased and the property is inherited from the husband or father-in-law, the husband’s heirs will inherit. If inherited from the father or mother, the father’s heirs will inherit. In summary, the assets of a Hindu woman who dies intestate are distributed based on whether they are self-acquired or inherited, with specific provisions for various scenarios involving children, husband, and other heirs. Christians are governed by the Indian Succession Act, 1925. In cases where a Christian passes away without a Will (intestate), the property distribution is structured as follows: One-third of the property is allotted to the spouse. The remaining two-thirds of the property are divided equally among the child(ren), including the children of any deceased son or daughter. Parsis are governed by the Indian Succession Act, 1925. When a Parsi passes away without a Will, the distribution of their property unfolds as outlined below: The property is divided equally among the children and spouse. If a son is deceased, his children and widow are entitled to his share, and similarly, if a daughter is deceased, her children inherit her share. Additionally, both parents (each parent) are entitled to a share equivalent to half the share allotted to each child. Muslims are guided by their individual Shariat laws, which determine the inheritance shares of legal heirs based on their relationship with the deceased and the size of the family. These laws restrict full testamentary freedom, allowing a maximum bequest of one-third of the estate through a Will. The rest of the estate is then distributed according to the relevant Shariat laws applicable to Sunnis and Shias. In the case of an Inter-Caste Marriage regulated by the Special Marriage Act, the rules of intestate succession are outlined in the Indian Succession Act, 1925. Under this law: One-third of the property will pass to the spouse. The remaining two-thirds of the property will be equally divided among the child(ren), including the children of any deceased son or daughter. Thus it becomes important for an individual to prepare a Will to distribute assets as per one’s wish thereby overriding the above intestate succession laws.

Planning for what happens to your wealth after you’re gone can seem overwhelming, especially when there are so many myths floating around. It’s important to understand these myths and their realities to make informed decisions about estate planning. Here are some of the most prevalent myths: I’m too young: Many people believe that Wills are only for older individuals or those with significant assets. However, life is unpredictable, and anyone, regardless of age, can benefit from having a Will to ensure their wishes are carried out in the event of their passing. I have a nomination: Having designated a nominee, it’s common to assume that they automatically inherit the assets. However, it’s important to clarify that a nominee doesn’t become the legal heir; rather, they act as a custodian of the specific asset. The authority of a Will overrides the nomination, and if there’s no Will, the laws of intestate succession take precedence over the nomination process. Joint ownership with spouse: In cases of joint ownership of immovable assets with a spouse, each holder typically owns a 50% share. Upon the demise of a joint owner, their share is inherited by their legal heirs, not automatically by the surviving joint holder. This is due to the presumption of a tenancy-in-common unless specified otherwise in the purchase agreement, meaning that each joint holder has a fractional interest in the property. My family knows my wishes: While it’s essential to communicate your wishes to your family, relying solely on verbal agreements or assumptions can lead to misunderstandings or disputes. A well-documented succession plan provides legal clarity and ensures that your intentions are legally binding. I can do it later: Procrastination is a common reason for not preparing a Will. However, life events can occur unexpectedly, and having a Will in place provides peace of mind and avoids potential complications for your loved ones. It’s expensive: While legal fees may vary, the cost of preparing a succession plan is typically reasonable considering the potential benefits and peace of mind it provides. Moreover, the cost of not having a succession plan, such as legal battles or unintended asset distribution, can be far greater. My estate will automatically go to my spouse/children: In some cases, people assume that their estate will automatically pass to their spouse or children. However, without a Will, the distribution of assets may follow legal guidelines that may not align with your wishes or the needs of your family members. Furthermore, in a nuclear family where your spouse and child are your only legal heirs, your assets, whether immovable or movable, will typically be split equally between them. However, you may have preferences to distribute your assets differently, such as transferring them initially to your spouse before eventually passing them on to your child. I don’t have enough assets: Even if you don’t have a lot, whatever you do have is important for your family’s support and well-being. It’s essential to make it easy for your family to access and benefit from your assets without any complications so they can use them as intended. A Will can address not just financial assets but also other important matters such as guardianship designation for minors.

Many Indians now hold assets in both India and other countries. When creating a plan for how these assets will be passed on after your death, you have two main options: Separate Wills for Each Country (Situs Wills): This approach involves creating a separate Will for each country where you own assets. Each Will is drafted according to the specific laws of that country, making it easier to enforce and interpret in local courts. Single Will for All Assets (Multi-Jurisdictional Will): This option involves creating one Will that covers all your assets, regardless of location. Here’s why separate Wills (situs Wills) are often preferred: Easier Execution and Interpretation: Local laws are followed, ensuring smooth handling by courts. Faster Probate: Each Will can be directly submitted to probate without waiting for it to be probated in your home jurisdiction and then probating it in second jurisdiction which is a two-step time consuming process. Problems may also arise if the original Will is retained by a foreign court Reduced Fees: You only pay probate fees in each country where you have assets, not duplicated fees across jurisdictions. Increased Privacy: Only assets in the specific Will are disclosed during probate, not your entire global estate. If there are discrete assets in a jurisdiction which are intended to be left to different beneficiaries in that jurisdiction, it will be better to deal with those assets in a separate Will. Avoiding Ambiguity: Problems can occur when different interpretation for important terms is made. For example, will the term “children” under local law include or exclude step children, adopted children or illegitimate children? Does the term “spouse” refer to only legally married spouses or live-in-partner’s or same sex spouses? Flexibility for Different Asset Types: Inheritance rules for specific assets can vary by country. E.g. in India if an immovable property is held jointly, the joint holder can bequeath his/her share under a Will. In some countries in case of joint ownership the asset automatically passes on to the surviving joint holder. Your local attorney would have knowledge of such issues. Accommodating Local Laws: Forced heirship laws or community property rules in some countries restrict how assets can be distributed. In India, the Muslim personal laws and the state of Goa has certain restrictions. Such local laws shall be considered while preparing a Will. Important Considerations When Using Separate Wills: Revocation clauses: Include clear revocation clauses in each separate Will to ensure that they do not nullify Wills from other jurisdictions. Both Wills should acknowledge their simultaneous validity so that a later Will doesn’t automatically revoke an earlier one. Residuary Clauses: These clauses deal with leftover assets. Wording needs to be precise to prevent conflicts. Consider that liquid assets in a jurisdiction may not cover all taxes and liabilities. Decide how tax burdens will be allocated among estates, as this can be a significant issue. Specifying Governing Law: Each Will should explicitly state which governing laws apply to the properties it covers to avoid legal ambiguities.

“A Will is not just a legal document; it’s a legacy of love and foresight that ensures your wishes are honoured even after you’re gone.” A “Will” is a legal document or declaration that individuals create during their lifetime to specify how their assets and properties should be distributed according to their wishes. By crafting a Will, individuals ensure that their heirs and survivors inherit the property as intended by the deceased. In India, Wills play a vital role in facilitating the fair division of property within family members, avoiding disputes and legal battles. A professionally written Will can provide additional benefits such as clarity, legal expertise, and peace of mind regarding the accurate execution of your wishes. Each family situation is unique, and one’s preferences may diverge from standard inheritance laws. A Will, being a legal instrument, allows individuals to specify their desires regarding estate distribution, taking effect upon the testator’s passing away. What are the benefits of a Will? Ensures assets are distributed as desired. Consolidates asset information for family understanding. Prevents family disputes over property. Allows appointment of a guardian for minor children. Simplifies asset transfer, reducing paperwork. Provides for financially dependent non-heir relatives. How is a Will prepared? Preparing a Will involves several key steps to ensure it accurately reflects your wishes and meets legal requirements. Here is a general guide on how to prepare a Will: List all assets: Make a list of property, investments, bank accounts, insurance policies, personal items,etc.. Choose beneficiaries: Decide who will inherit your assets, including family, friends, charities, and/or others. Select an executor: Select a reliable individual to oversee your estate, ensuring that the executor follows through with the deceased’s wishes as specified in their Will Choose a guardian:Choosing a guardian for minor children in case of demise of both parents. Sign with two witnesses: Sign your Will in front of witnesses as required by law. Registration:While not mandatory, registering a Will enhances its authenticity. The testator must personally appear at the registrar’s office with two witnesses, and a medical certificate may be needed. Store securely: Keep the original Will safe in a secure location like a home safe or with your advisor/attorney. Inform Relevant Parties: Make sure your executor, beneficiaries, and relevant parties are aware of your Will and where it is stored. Provide them with copies or instructions on how to access the document when needed. Review regularly: Check your Will often and update it after major life events like marriage, divorce, births or asset changes.