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Intestate Succession
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Intestate Succession
Intestate Succession

More commonly, the term succession means inheritance. After the death of a particular person, succession follows. The Constitution of India deals with the personal laws and areas like marriage, divorce, partition, succession, adoption, intestacy, etc. via Entry 5 in List III. Therefore, either the State or Centre is competent to legislate on areas falling under the personal laws. The Hindu Succession Act states the rules relating to succession applicable to Hindus, Sikhs, Buddhists, Jains etc. It extends to the majority of the Indians. In the case of Muslims, there is the Sharia Law, which is applicable in case of inheritance or Succession. Whereas, in case of Christians and person of other religion who are not covered by the Hindu Succession Act and the Sharia Law comes under the Indian Succession Act, 1925.

In India, due to its dynamic and diverse nature, it is found that Succession is a very tactful issue. It can be classified into two ways, i.e., testamentary succession - one with a will, or intestate succession - one without a will. Will is a declaration which expresses the desires of a person regarding his estate and transfer of the same after his death. An individual is said to have died intestate when he has not disposed his assets under a will, or the settlement under the will is incapable of taking into account the invalid bequest. Intestacy can take place partially or totally.

If a person dies intestate, then the distribution of assets is as per the provisions of the Indian Succession Act. Many complexities arise in case of more than one heir to claim a right on the property.

Who can Claim a Property?

In order to claim the property, one requires a succession certificate or a letter of administration issued by the court. Letter of administration is granted by a competent court to distribute the assets among the heirs. It can be acquired by filing a petition in the Court, whereas succession certificate is issued to a person who claims the authority to acquire debts, securities and movable assets.

Intestate Succession Among Hindu’s:

In order to consolidate and amend, the laws relating to intestate succession among Hindus, the Hindu Succession Act, 1956 was passed. It applies to all the persons who practice the religion or who are defined as Hindu's, i.e. Buddhists, Jains and Sikhs under the legal regime. The act was amended in the year 2005.

The provisions of this Act states that if a Hindu male dies intestate, then the following persons can make a claim:

First Claim: Class I legal heirs. Class, I legal heirs include mother, spouse and children. When any child dies, then their children and spouse get an equal share. They have equal rights to their assets.

Second Claim: Class II heirs can claim in the absence of Class I heirs. Class II heirs include father, living children's grandchildren, sibling, sibling's children etc.

Third Claim: The third claim can be made in the absence of Class I and Class II heirs. Moreover, that claim can be made by Agnates. They can be defined as the distant blood relatives of male lineage, i.e. of the father's side.

Fourth Claim: The fourth claim can be made in the absence of Class I, Class II heirs and Agnates. The Cognates can make the fourth claim. They can be defined as the distant blood relatives of female lineage, i.e. of mothers' side.

The following person can make a claim, in the case of a Hindu female:

  • The sons, daughters and husbands can make the first claim.
  • The Second Claim can be made in the absence of first claimants; the heirs of the husband can make a claim.
  • The Third Claim can be made in the absence of first and second claimants; the mother and father can make a claim.
  • The Fourth Claim can be made in the absence of the claimants mentioned above, the heirs of the father.
  • The heirs of the mother can make the Fifth Claim in the absence of heirs of the father.

Intestate Succession Among Muslim

When a person is governed by the Mohammedan law and dies intestate, then the sharers and residuary can make a claim. Sharers are the heirs who have a specific share within a certain limit. Whereas residuaries are those who acquire the remainder of the property. In the absence of shares and residuaries, a distant kindred can claim the deceased property.

Intestate Succession Among Christian

Section 32 of the Indian Succession Act states that the legal heirs of residuary are husband, wife or the kindred of the deceased.

It is seen that various complications and consequences arise due to the intestate succession, to avoid such complications India should adopt an estate planning as it helps to avoid disputes within the family.

To avoid the consequences and complications of intestate succession, the people in India should adopt the planning of the estate. It has multifold benefits that are to avoid any dispute within the family. To guarantee the smooth transition of assets from the deceased to the heirs promotes better tax planning, protects the wealth of the deceased, etc.

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