Intestate & Inheritence

Intestate refers to a person dying without any valid WILL.  When a person dies without having a valid will in place, all his estate passes by what is called “intestate succession”. The succession laws that operate in India are Hindu Succession Act, Indian Succession Act and Muslim Personal Law. The Hindu Succession Act applies to Hindus, Jains and Buddhists where as the Indian Succession Act applies to Christians, Jews and Parsis. Muslim Personal Law applies to Muslims. These succession laws define the legal heirs of the deceased and the entitlement of such legal heirs in inheriting the property.

The Hindu Succession Act, 1956  is a law that was passed by the parliament of India  in 1956 to amend and codify the law relating to intestate succession, among  Hindus. The Act lays down a uniform and comprehensive system of inheritance and applies to persons, governed by both the  Mitaksara and Dayabhaga schools. The Hindu woman’s limited estate is abolished by the Act. Any property, possessed by a Hindu female, is to be held by her as absolute property and she is given full power to deal with it and dispose it by ‘Will’ as she likes. The Act was amended in 2005 by the Hindu Succession (Amendment) Act, 2005.

Section 8 of Hindu Succession Act has laid down the rules of succession in the following manner when a Hindu Male dies Intestate.

  1. Firstly, upon the heirs, being the relatives specified in Class 1 of the schedule
  2. Secondly, if there is no heir of Class 1, then upon the heirs, being the relatives specified in Class 2 of the schedule.
  3. Thridly, if there is no heir of any of the two classes, then upon the agnates if the deceased and
  4. Lastly, if there is no agnate, then upon the cognates of the deceased.

The list of Class 1 legal heirs, as per the Hindu Succession Act, are as follows.

Class 1 heirs of Hindu male

  1. Son, Daughter, Widow and Mother
  2. Son and daughter of a predeceased son
  3. Son and daughter of a predeceased daughter
  4. Widow of a predeceased son
  5. Son and Daughter of a predeceased son of a predeceased son and widow of a predeceased son of a predeceased son.

The legal heirs in class 1 category will share the estate by giving one share each to the widow, the surviving sons and daughters and also the mother of a person dying intestate. The legal heirs of any deceased son and daughter shall receive together the share of such deceased son and daughter.

Class 1 heirs of Hindu Female

As per Sec 15 of the Hindu Succession Act, the property of female Hindu dying intestate shall devolve in the following manner.

  1. Firstly, upon the sons and daughters, including the children of any predeceased son or daughter, and also the husband;
  2. Secondly, upon the heirs of husband;
  3. Thirdly, upon mother and father;
  4. Fourthly, upon the heirs of the father; and
  5. Lastly, upon the heirs of the mother.

Among the heirs specified above, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

The assets of a deceased person dying intestate will be inherited in line with the above provisions of Hindu Succession Act and does not automatically pass on to the spouse. Children and other members of the family also can stake a claim to the property of the deceased. Intestate succession may lead to confusion and dispute among the family members in the inheritance of the property.

Thus, with an appropriate estate plan disputes among family members in the inheritance of an estate can be avoided and also ensure that the assets are inherited by the intended persons.

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A Suresh

Chartered Trust and Estate Planner TM

CERTIFIED FINANCIAL PLANNER CM