Efficient succession planning is very important to ensure that your hard-earned wealth reaches the right people. This is more important in the case of immovable property as the legal succession of such assets is not a simple process. For instance, people living in flats, are governed by the cooperative laws of the state which provide for the nomination of the house in case of a death. However, a nomination is not the same as bequeathing a property by will.
It may be noted that the nomination only provides for the transfer of the name in the records of the housing society but it does not make the nominee a full-fledged owner of the flat. The legal heirs are the beneficial owner of the property and the nominee cannot dispose the asset for his own benefit. The law for succession to a property, depends on whether the deceased person has executed a will or not. Hindus (including Buddhists, Jains and Sikhs) are governed by the Hindu Succession Act, 1956. The rest of the Indian population comes under the Indian Succession Act, 1925.
Succession through a will
People who come under the jurisdiction of the Hindu Succession Act, can bequeath their property to any person, even excluding relatives, through the execution of a will. In such a case, it is mandatory for the executor of the will, to obtain a probate (certification) from a court for assets in Mumbai, Kolkata or Chennai.
Succession without a will
In case a deceased owner of property does not leave behind a will, the legal heirs will inherit the assets as per the provisions of the Hindu Succession Act, 1956 in the prescribed order. The first preference is given to Class-I legal heirs, which include close relatives like parents, spouse, children and their successors. When it comes to each of their shares, sons and daughters, and parents will have equal shares. A spouse too, will be entitled to one share. However, in case there are more than one surviving spouses, they all will share the one portion they are entitled to. Their successors too, will get only one share, which the person through whom they are claiming was entitled to.
When a house has been left without a will, a female heir is entitled to claim a share and stay in the house. However, only the male heir has a right to divide the property and the female heir cannot call for a partition. Despite leaving a will, it’s still necessary for the legal heirs to obtain a succession certificate from the court. It’s the legal document that authorises the person or people obtaining it, to represent the deceased individual for the purpose of collecting debts and securities due to him or payable in his name. For obtaining the succession certificate, an application needs to be made to a magistrate or a high court.
It’s fairly evident that a will prevents a lot of problems from occurring and also ensures the efficient passing of property to the right people.
(The author is a tax and investment expert, with 35 years’ experience)