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WHAT HAPPENS TO PROPERTY AFTER DEATH OF A PERSON?

A person keeps on working throughout his life to accumulate more and more properties. But the question is what happens to these properties after he/she dies and who are the persons who inherit these properties.

How a person can deal with his property?

A self-acquired property can be dealt by a person as per his desire. During his lifetime, a person can sell his property at some sale consideration, or he can gift his property to anyone, or he can enter into some family settlement. Also, a person can write a ‘Will’ that after his death property will be transferred to the person named therein. It is his exclusive prerogative to decide about his property during his life time. On the death of the owner, the property will be transmitted either by testamentary or intestate succession.

What is Testamentary Succession and Intestate Succession?

1.  Testamentary Succession: Testamentary Succession is applicable when succession is done through ‘Will’. The individual who creates the Will is called the testator or executor and the person in whose favour the Will is created is known as the legatee. After the death, the right to possession and enjoyment of a property can be obtained by the legatee by obtaining a Probate, Letter of Administration or Succession Certificate, from a court of competent jurisdiction, as the case maybe.

2. Intestate Succession: In situations, where the person dies intestate i.e. without creating a Will, then that person’s property is transferred among his ‘legal heirs’ by the respective applicable laws of intestate succession.

What is the relevant law?

In India, the law relating to succession is governed by the Indian Succession Act, 1925. In case of Hindus, Sikhs, Jains and Buddhists, Indian Succession Act is applicable for ‘testamentary succession’. However, for ‘intestate succession’, Hindu Succession Act, 1956 is applicable in case of these religions. The Indian Succession Act, 1925 does not apply to Muslims, as their succession is based on their personal laws. In case of Christians, Laws relating to testamentary as well as intestate succession, is governed as per the Indian Succession Act, 1925.

How the property is transmitted after the death of a person?

After the death of a person, his property or assets are transmitted in two ways, viz., Testamentary Succession and Intestate Succession.

A person, as long as he is alive, is free to deal with his property in any way he likes. He, by making a Will, is free to decide in any way for distribution of his property after his death in favour of any person, whether they are related to him or not.

What is a Will?

A ‘Will’ is the declaration, by the owner of property, as to how and to whom, his property is to be transmitted after his death. The Will takes effect only after the death of such owner, and therefore, the person executing the Will can change or revoke it any time or any number of times, during his lifetime.

In the case of Ganesan (D) Through Lrs. V. Kalanjiam & Ors. 2019 (6) CTC 85; CIVIL APPEAL NO(s).5901­5902 OF 2009, it was held that there is no express condition that the testator (the person who executes a Will) must necessarily sign the Will in presence of the attesting witnesses. Also, there is no legal obligation to get a Will registered but if the testator desires to do so, he may get it Registered. In the case of Maturi Pullaian v. Maturi Narasimham, AIR 1966 SC 1836, the Supreme Court held that registration of a Will is not compulsory. A Will that is properly signed and clearly expresses the wishes of the testator will be legally valid even if it is not registered with the Registrar.

What happens to the property if there is no Will?

If a person dies without executing any Will, then the property will be devolved amongst his ‘legal heirs’ via Intestate Succession as per the principles of the Hindu Succession Act, 1956.

Who are the Legal Heirs?

Now it is important to understand, as to who are the Legal Heirs of the deceased. The Hindu Succession Act, 1956, says the property of a Hindu male dying intestate (without Will) will be inherited to ‘Heirs in Class I’. However, if there is no person alive in ‘Class I’ at the time of death of the deceased, then the property of the deceased will be inherited by ‘Heirs in Class II’.

The ‘Heirs in Class I’ broadly includes mother, widow, son(s) and daughter(s) etc. It is to be noted that each of them, gets an Equal Share in the property of the deceased. For example, if ‘A’ dies intestate without leaving a Will, then his mother, widow wife, son and daughter will each get equal share i.e., 1/4th share each in this example. It must be noted that there is no distinction between a married and unmarried daughter and a married daughter inherits equally. Also, If any of the legal heirs as mentioned in the Class I’ is not alive then his/her share in the property will go to the legal heirs of that deceased legal heir.

The ‘Heirs in Class II’ includes 23 types of relation which broadly include the father, brother, sister, sibling’s children, living children’s grandchildren etc. and they are entitled to a share in the property only if there is no ‘Class I Heir’ living. Lastly, if there are no Class I or Class II heirs, then the property will be devolved upon the Agnates and the Cognates. Agnates of the deceased are relatives from the parental side while Cognates of the deceased are relatives through maternal side.

For any clarifications/suggestions or any queries please write drop a comment or write to us at info@sigmalegal.in

TEAM SIGMA LEGAL

(LITIGATION DEPARTMENT)

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