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HindustanTimes Sat,27 Dec 2014

Succession issues: The legal process and components

HT Correspondent, Hindustan Times  New Delhi, August 16, 2014
First Published: 08:27 IST(16/8/2014) | Last Updated: 10:20 IST(16/8/2014)

The Hindu Succession Act, 1956, was passed to amend and codify the law relating to intestate or unwilled succession among Hindus. It applies to all those who practice the Hindu religion as well as those who fall under the term Hindu within the Indian legal system including Buddhists, Jains, and Sikhs. It is hailed for its consolidation of Hindu laws on succession into one act.

The Hindu woman’s limited estate is abolished by the Act. Any property, possessed by a Hindu female, is to be held by her absolute property and she is given full power to deal with it and dispose of it by will as she likes. The Act was amended in 2005 by Hindu Succession (Amendment) Act, 2005.
Islamic law

There is no concept of ancestral property or rights by birth in Islamic law.

Muslim law recognises that persons may leave behind a will, but a will (unless ratified by all the heirs of the person leaving behind the will) is valid only to the extent of one-third of the deceased’s property. In so far as it is valid, it is governed by the regular laws applicable to wills in India.
In Muslim inheritance law, the wife of the deceased cannot be dispossessed, and gets a definite share.

However, she has to share the inheritance with other wives if there is more than one wife. The law gives the male heirs, sons, twice the share of the daughters.

The residuaries are those who are entitled to the estate, if any, left after the respective shares have been taken. Of course, this is only a broad rule and there are several exceptions to this rule.

Failing any sharers or residuaries, the next level of relations is a class of persons known as distant kindred. Before making a claim to any property left by the deceased, one need to make sure that there are no outstanding debts, In case there is, it would have to be cleared before a division can take place.
In case there is ambiguity in the will, le gal advice must be sought while arriving at any kind of settlement. Lack of clarity in the will can lead to serious legal complications at a later stage.

Once the legal ownership of the property for that heir is confirmed, the next step is to apply for mutation of the house to local municipal authority. Mutation is simply the change of title ownership and does not confirm ownership.

In case of multiple heirs, it is advisable to mark the division of property among them right at the time of mutation to avoid subsequent complications. Once these legal formalities are over then the heir is at liberty to either reside in it or rent it out.


Will
A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage the person’s estate and provide for the transfer of that person’s property at death.

The person who prepares such a will is known as the testator. The distinction exists because if there is no will, or the will is found not to be valid, the property will be divided and transferred as per the rules of intestate succession.

For executing the will the person must be fully competent, and should not be a minor and of unsound mind. It has to be in writing and has to state that the person executing it is making it out of his own free will. It has to be signed by the executor and has to be attested by atleast two witnesses’.


Probate
A probate means a copy of the will, certified under the seal of a competent Court with a grant of administration of the estate to the executor, a person nominated to execute the directions of the will. It is the official evidence of an executor’s authority. After the death of the person concerned, a proceeding may be initiated in court to determine the validity of the will that the testator may have created, known as a probate proceeding. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit.

A probate in no way decides upon the manner of distribution or existence of the property.


Intestate succession
This law of succession provides for the method of distribution of property (known as devolution) in case the deceased passes away without leaving behind a will. Dying without leaving behind a will is known as dying intestate.

As a general principle whenever a Hindu dies intestate then a legal presumption comes in to force that the property get vested in to legal heir automatically and it belongs to Joint Hindu Family. If there no claimants, as discussed above, then the property gets vested with the state government.


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