A will is a document or declaration that ensures your real estate and other assets are legally transferred and distributed among your heirs according to your wishes after you pass away. As the name suggests, a will means you make it clear to your heirs about who receives what from your estate once you are gone. By writing a will, you can prevent family conflicts and legal battles over inheritance.
There’s a term ‘intestate’, which refers to a person who dies without making a valid will. When a person dies intestate and there is a dispute among his heirs over the property and assets left behind by the deceased, the court decides how his assets are distributed among various claimants. In such cases, the deceased’s family members seeking a share of properties have to rely on the court’s decisions to assert their rights, if any.
Under Section 30 of the Indian Succession Act, if someone dies intestate, the court may issue a notice to invite claims over the property left behind after the death certificate is issued. In such a situation, each heir receives a portion of the property, or they can decide themselves amicably on the distribution. If it remains unsettled due to some disagreements, the court can step in to settle the matter. There are several factors that determine how the property will be treated by the law. Factors like the person’s marital status—married, single, widowed, with or without children, etc.—are critical aspects that determine the nature of a will. Further, an individual’s will and its features with regards to property may vary based on his religion.
Please note that the below response has been prepared based on the provisions of the Hindu Succession Act, considering the limited time.
Suresh Surana, Founder, RSM India, explains how the succession law deals with such intestate properties or assets, including moveable and immovable, under various scenarios. The property, including moveable and immovable items, would be distributed as per the Hindu Succession Act, 1956, in the manner as provided hereunder:
If a male dies intestate, i.e. without making a will, then such intestate succession shall be governed by the Hindu Succession Act, 1956 (said Act). Section 8 of said Act deals with “General rules of succession in the case of males. It states that the property of a male Hindu dying intestate shall devolve in the following manner:
(a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.”
Class I legal heirs includes: Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
Class II legal heirs includes:
I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Section 9 of said Act deals with order of Succession in Class I and Class II heirs and it states that the heirs specified in Class I shall take simultaneously and to the exclusion of all other heirs and those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
If a female dies intestate, i.e. without making a will, then such Intestate Succession shall be governed by Section 15 of said Act which deals with “General rules of succession in the case of Females.—It states that the property of a Female Hindu dying intestate shall devolve in the following manner:
(a) Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) Secondly, upon the heirs of the husband;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father; and
(e) Lastly, upon the heirs of the mother.
However, if the property is inherited by female Hindu from her father or mother, then it shall devolve upon heirs of father or mother in the absence of son or daughter of deceased and not upon the other heirs referred to herein above in the order specified therein.
Also, if the property is inherited by a female Hindu from her husband or her father-in-law, then it shall devolve upon the heirs of the husband in the absence of the son or daughter of the deceased and not upon the other heirs referred to herein above in the order specified therein.
Section 16 of said Act deals with the order of succession, and the distribution of the intestate property among those heirs specified above shall take place in such a way that those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take it simultaneously.
