Laws of Property Inheritance in India

Laws of Property Inheritance in India

Laws of Property Inheritance in India

Inheritance is a convention of passing or rather transferring properties, titles, debts, rights, and obligations to the legal heir of a person upon his/her death. It can be done by either a will or through laws of succession. The regulation of inheritance differs among religions, societies, and communities.

We believe that there is no bigger pain than losing a family member, but we also believe that it is more painful to deal with any kind of family dispute regarding the inheritance of property. However, this happens in India because of a lack of knowledge about property inheritance.

In the time of inflation, the prices of real states are touching the sky, and it becomes automatically essential for legal heirs to safeguard the property before and after the demise of the legitimate owner of the property. Legal owners have to go through legal formalities to acquire the ownership of their property.

However, to get the property, the legal procedure and formalities may differ because of the nature of the property.

What is a will?

Under the Indian Succession Act, 1925, a will is a declaration or a legal document that contains specific details like the name of one or more persons who will acquire, manage, and get benefitted from an owner’s estate after his/her death.

When the will get a certified copy, it is called as a Probate. The copy is certified with the seal of the concerned court of law that grants administration of the property to the legatee/ executor of the testator. A Probate thus acts as an evidence of the heir’s authority over a property.

Who can create a will?

A competent person with a sound mind and who is above 18 years of age and not a minor is able to create a will.

Legal heir in India?

According to India laws, a person who is determined to succeed to the estate of an ancestor who has died without making a will or mentioning a legal heir. Therefore a legal heir is an individual who takes the place of the property of his/her ancestor, either by law or by a will.

Importance of heir

It is essential to identify a legal heir for every person owning property; they are the successors for property claims and insurance coverage.

Laws regarding inheritance

  • The Hindu Succession Act, 1956/ 2005

It is applicable on Hindus which is also applicable to Sikhs, Jains, and Buddhists for succession without a will

  • The Indian Succession Act, 1925

It is applicable for the transfer of property by Hindus through a will. Under this act, any individual is able to legally transfer his property to any other individual by getting a will drafted.

Legal heir under Hindu law

Under the Hindu Succession (Amendment) Act, 2005, the following can be the legal heir of a person:

Class I

  • Wife (Widow)
  • Mother
  • Son
  • Daughter
  • Deceased son’s daughter
  • Deceased daughter’s daughter
  • Daughter of a pre-deceased son of a pre-deceased son
  • Deceased son’s wife (Widow)
  • Wife (widow) of a pre-deceased son of a pre-deceased son
  • Deceased son’s son
  • Deceased daughter’s son
  • Son of a pre-deceased son of a pre-deceased son

LEGAL HEIR WHEN ABOVE MENTIONED PERSONS ARE NOT ALIVE

The property goes to heirs of Class II in case no one from Class I is alive. This Class II are the relatives, who are defined by the Indian Succession Act. There are categories in Class II, I to XI, the inheritance will be passed from one category to another, in case no one is alive. Like if nobody from I is alive, it will be given to II, and if no one from II is alive, it will be given to III, and so on. The categories are:

Class II

I

  • Father

II

  • Daughter of son’s daughter
  • Son of son’s daughter
  • Brother
  • Sister

III

  • Daughter of daughter’s daughter
  • Son of daughter’s daughter
  • Son of daughter’s son
  • Daughter of son’s daughter

IV

  • Son of the sister
  • Daughter of the sister
  • Daughter of the brother
  • Son of the brother

V

  • Mother of the father
  • Father of the father
  • Father’s wife (widow)
  • Brother’s wife (widow)

VII

  • Sister of the father
  • Brother of the father

VIII

  • Mother of the mother
  • Father of the mother

IX

  • Sister of the mother
  • Brother of the mother

Legal heir of female Hindu

The property of a Hindu female dying intestate is to be transferred to:

  • The daughters and sons (this includes the children of any dead son or daughter) and the husband,
  • The husband’s heirs
  • The mother and the father
  • The father’s heirs
  • The mother’s heirs

Legal heir under Muslim law

The following are the heirs under Muslim Personal Law (Shariat) Application Act, 1937:

  • Husband (Only legal)
  • Wife (entitled to multiple wives and divorce wife if she is on Iddat period)
  • Son (Not entitled to step, adopted and illegitimate son)
  • Daughter (Not entitled to step, adopted and illegitimate daughters)
  • Grandson (Only entitled to son’s son, not daughter’s son)
  • Granddaughter (Only entitled to son’s daughter)
  • Father (Not entitled to step or illegitimate father)
  • Mother (Not entitled to step or illegitimate mother)
  • Grandfather (Only entitled to father’s father)
  • Grandmother (Entitled to both maternal and paternal grandmother)
  • Brother (Entitled to all brothers sharing same father and mother)
  • Sister (Entitled to all sisters sharing same father and mother)
  • Paternal brother (Entitled to brothers sharing same father, but different mother)
  • Paternal sister (Entitled to sisters sharing same father, but different mother)
  • Maternal brother (Entitled to brothers sharing the same mother, but different father)
  • Maternal sister (Entitled to sisters sharing the same mother, but different father)
  • Nephew (Only entitled to brother’s son)
  • Paternal nephew (Only entitled to paternal brother’s son)
  • Son of full brother’ son
  • Son of paternal brother’s son
  • Full brother of the father
  • Paternal brother of the father
  • Son of father’s full brother
  • Son of father’s paternal brother
  • Son of father’s full brother’s son
  • Son of father’s paternal brother’s son
  • Son of father’s full brother’s son’s son
  • Son of father’s paternal brother’s son
  • Son of father’s full brother’s son’s son
  • Son of Father’s paternal brother’s son’s son

Legal heir under Christian law

According to the Indian Succession Act, 1925, Section 32, legal heirs of a Christian person are:

  • Wife (Widow)
  • Son
  • Daughter
  • Father
  • Mother
  • Brother
  • Sister
  • The direct bloodline (Such as son and his father, grandfather and great- grandfather)
  • If a person has died without making a will, and only his great- grandfather, an uncle, and a nephew are left, no person will take equal shares with direct kinship, under the third degree of kinship.

Legal heir under Parsi law

According to the Indian Succession Act, 1925, section 54, legal heirs of a Parsi person are:

  • Father
  • Mother
  • Full brother
  • Full sister
  • Paternal grandparents
  • Maternal grandparents
  • Children of maternal grandparents and their lineal descendants
  • Children of paternal grandparents and their lineal descendants
  • Parents of paternal grandparents
  • Parents of maternal grandparents
  • Children of paternal grandparents’ parents and their lineal descendants
  • Children of maternal grandparents’ parents and their lineal descendants

Rights of Widow

Being a Class I heir, a wife (widow) has a right in her husband’s self-acquired property or properties, but she has not right on her husband’s ancestral property.

Rights of Children

According to the laws of succession in India, by his birth only, a son has right in the property of his father and grandfather. Also, a son has equivalent rights like his father in their ancestral property. In a case, when a person has separate property or a self-acquired property, and he dies without making a will, then his son, living mother, sister, grandmother, and brother have equal rights of succession in his property.

Rights of Daughters

Before the year 2005, the right share in the ancestral property was only given to unmarried daughters in India. However, in the year 2005, the equal rights and duties of a son were granted to daughters.

Rights of Adopted Child

The rights of inheritance for an adopted child in India are almost similar to a natural-born child. Also, it is noteworthy that after adoption, a child has no inheritance right over his biological family. However, if he/she acquires a property before adoption, the property will continue to be in his/her name only.

Right of Child born in live-in relationship

In the year 2008, the honorable Supreme Court of India in Vidyadhari v/s Sukhrana Bai case granted the children born in a live-in relationship, an inheritance right, and acknowledged them as legal heirs.

Documents required for legal heir certificate

  • Deceased person’s name
  • The relationship and the name of the applicant with the deceased person
  • Applicant’s signature
  • Applicant’s residential address

Post by Amrita Chakravorty

A post-graduate in Law, Amrita Chakravorty has been writing for legal websites for over three years. She provides writing and editing services. Her educational background and experiences have given her a broad base from which to approach many topics. Having a keen interest in working against gender discrimination, she especially enjoys writing about family law, women law and domestic laws.