Legal

Issue of Succession Certificate: An Overview

Issue of Succession Certificate: An Overview

One of the most common issues faced by family members in the event of death of the actual owner of a property or assets is the distribution of the same, especially in the absence of a will. That’s when the Indian succession laws act as a guiding force because the laws are drafted with the objective of facilitating the transfer of property and other assets of a deceased to the right person so as to ensure that the same are not misused after their demise. However, most of people are unable to avail the benefits entailed in the laws due to a lack of awareness in respect of these laws.

The present article shall focus on an overview of succession certificates which shall include the laws of intestacy in various religions and how the succession certificate is different from a will and legal heir certificate to provide better clarity about its concept.

Succession Certificate for Property

As per the Indian Succession Act 1925

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, if after the death of the person, there is an absence of any will to provide the information about the distribution of the property, the property must be distributed as per the laws of intestacy, which necessitates the requirement of a succession certificate.

What are the Laws of Intestacy in Various Religions?

It is important to have a thorough knowledge of the laws of Intestacy in various religions so as to decide the person who would be required to obtain the succession certificate.

Hindu Law:

For Hindus (including Jains, Buddhists, and Sikhs), the Hindu Succession Act, 1956, and Hindu Succession (Amendment) Act, 2005 shall apply.

Death of Male

If a male dies intestate, his property is distributed in the following manner.

  • The property shall initially go to the Class I heirs, which includes the children (irrespective of gender), widow or mother of the deceased, children and widow of a pre-deceased son, if any. Children of a pre-deceased daughter, if any, widow, and Children of the predeceased son, if any.
  • In the absence of a Class I heir, the Class II heirs shall be entitled to get the property. It includes the father, brother, sister, brother’s son and sister’s son, among others.
  • In the absence of Class II heir, the property will go to Agnates which are the relatives of the deceased related by blood or adoption. It must be noted that such lineage must be solely through the males of the family. 
  •  In case of the Agnates aren’t, there, then to Cognates, i.e. the distant relatives, by adoption or blood, and not wholly through male lineage.
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Death of Hindu Female

The devolution of a Hindu Female is done in the bellow mentioned manner

  • Firstly the property shall be equally divided among the husband, children (including children of predeceased son or daughter) second, to the husband’s heirs.
  • In the absence of the heirs of the husband, then the property shall go to the mother and father of the deceased female, and if the parents have died, then to the legal heirs of the father.
  • If none of the above-mentioned relatives exists, to heirs of the mother.
  • In cases where a Hindu Female has inherited property from her parents and she doesn’t have any children, the property shall be given to her father’s heirs. The term ‘children’ includes children of any predeceased son or daughter. However, in case the property is inherited from the in-laws, it shall be given to the in-laws’ heirs in case of the absence of children or grandchildren.

Hindu Undivided Family or HUF

  • A Hindu Joint Family’s property is distributed on the basis of survivorship. In case of death of the Karta, i.e. head of the family, the property devolves upon the surviving members for up to 4 generations. It must be noted that property won’t devolve as per the Hindu Succession Act, even if the heirs belong to the Hindu religion. 
  • However, a Class I relative has the right to claim the share of the property and then the property would be provided to the claimant as per the Hindu Succession Act.

Muslims

  • The laws of Intestacy for Muslims are covered under the Shariat, wherein the father is considered the absolute owner of the property, and such property is inherited by the heirs on the death of the father.
  • The father can alienate the property as an absolute, thereby depriving the heirs of inheritance. But not more than one-third of the assets can be disposed of by him without the consent of his heirs. The property is always considered after the payment of funeral expenses and debts. The remaining property is considered the legal right of his heirs after his death.
  • The burial expenses are considered by the Qazi (judge ruling according to Islamic religious law), followed by making a list of the deceased’s assets that would be distributed among the wife and children.
  • There are 2 types of heirs as per Muslim laws ie Sharers, and Residuaries the sharers are entitled to some share in the property of the deceased and the leftover property is taken over by the Residuaries except the agricultural land, as the same has been kept outside the ambit of the Shariat Act, 1937. Therefore the succession to it continues to be governed by Local Tenancy Law except in cases where the marriage of the deceased was solemnised as per the Special Marriage Act, 1954.
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Christians

The property of the Indian Christians shall be divided as per the rules of Chapter II of the Act of the Indian Succession Act.

  • 1/3 of the property goes to the wife, and the remaining shall be divided among children (including the predeceased children’s grandchildren) in equal measures.
  • In the absence or death of the wife, the property shall be divided among the children equally. 
  • If the children are absent, the property would be shared equally between the wife and the husband’s relatives.
  • In case the relatives stated above don’t want to claim, the assets shall be given to the deceased’s parents. 

Parsis

  • Half of the property is given to the wife, and the remaining property is divided among children, inclusive of grandchildren of predeceased children irrespective of gender, in an equal manner or just the children in the absence or death of the wife.  
  • The property shall be given to the deceased’s parents in the absence of any children. 

How is a Succession Certificate Different from a Will Probate and Legal Heir Certificate?

The difference between the three terms is enumerated in a tabular form below –

BasisWill ProbateSuccession CertificateLegal Heir Certificate
NeedIt is needed in order to avoid the problem of falsification or the authenticity of the Will being challenged and ensuring  the reliability  of the Will & vesting rights such as disposal & distribution of the property  is done by the Executor whose name is provided in the Will or delegated by the CourtThis certificate is needed for claiming the movable and immovable propertyDepending  upon the company and banks for payment’s transfer;  this certificate is often used  for transferring patta for a property from name of the deceased  to the relatives name accumulate ex-gratia’s payment claims payment by government  to the deceased person, etc. 
Person that can get  it issuedAdministrator or Executor of a WillLegal HeirsLegal Heirs
Issuing AuthorityJurisdictional Principal Court or before the High Court (as it has concurrent jurisdiction)The jurisdictional  judge of the place of residence of the death of deceased or the place of the propertyRevenue Officer of the Taluq
ResultThe property of the deceased  is managed   and distributed by an Executor acting on behalf of the deceasedThe certificate holder get interest or dividends on the property along with the right of transferring or negotiating the sameIt can be used to claim amounts due to the deceased as it provides a proof of relationship with the legal heir.
Proof of representative titleLegal proof of representative titleA valid proof of representative titleIt can act as a prima facie proof, but not a conclusive proof.  
DocumentationFee (estimated on the assets’ value),  Death certificate, Original Will, Title deeds related to the immovable property mentioned in the documents pertaining to the movables cited in the Will.Death certificate Pan Card of all the legal heirs. Address Proof of all the legal heirs. Prescribed application form by affixing a court fee stamp.  Death certificate, Service certificate issued by the Department if serving as an employee, Pensioner payment slip, Aadhar card, & family members names and relationship.
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Conclusion

It is essential to understand the meaning and concept of a succession certificate along with its difference with other documents of similar nature before applying for the same. The next article shall discuss about the detailed procedure of Issue of Succession Certificate.

Read Our Article: Process of Transmission of Shares without Succession Certificate

References

  1. https://legislative.gov.in/

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