A Guide to Laws of Inheritance in India

Introduction 

• When a person passes away, their property and assets are transferred to their legal heirs or relatives, which depends on whoever is present. 
• It is done in two ways which are by way of a will or Testamentary Succession or Intestate Succession. The assets and belongings are divided between the members as per laws of inheritance and Will (if present).

What is Meant by Inheritance?

• It means the property that is transferred to descendants after an individual passes away. 
• The laws of inheritance deal with property, assets, titles, shares, funds, and other obligations that belonged to the deceased person and were transferred to another individual by the laws of inheritance in India.
• There are plenty of provisions related to it, and one must acknowledge it to make proper decisions regarding the property. Many times laws of inheritance are not used decisively, and family partition takes place.

There are two ways to succeed in a property that a successor must understand and have knowledge about. These are:

• Through Will / Testamentary Succession: This type of Succession in-laws of inheritance means that the deceased person leaves behind a Will, which is of legal value, and property is distributed as it is mentioned in the Will as per laws of inheritance. 
• Intestate Succession: In laws of inheritance, this means that the deceased person did not leave any will behind, so the property and assets are equally divided and distributed among heirs who can be further divided into relationship-wise categories. 

The Indian laws of inheritance govern the division, distribution, and protection of the property and assets of a deceased person in two cases which are divided:

• Personal laws of Inheritance: This method applies where the will is not applied or is not present. There are two laws of inheritance under this, which are the Hindu Succession Act of 1946 and the Muslim Personal Laws (Shariat) Application Act.
• The Indian Succession Act of 1925: This applies when Hindus deal with Testamentary Succession. This means that the deceased person left a will, and distribution will happen accordingly.

People Also Read: Recent Calls for Uniform Civil Code (UCC) (2023)

Types of Properties where Laws of Inheritance apply

There are two types of properties where the laws of inheritance come into effect, and the properties are distributed as per the provisions.

• Ancestral property: The property that is inherited for up to 3 or 4 generations is known as ancestral property. Every child born in such a family has a right over such property by birth. The heirs can legally claim their share and divide as per rational circumstances. 
• Self-acquired property: Such type of property is owned by an individual on their income or savings. It does not belong to anyone else other than the legal owner of the property. Such property cannot be claimed by every heir as the owner can transfer it to anyone they wish through a will.

What are the Laws of Inheritance for Women?

• In recent times, a major drawback was found and put forward that there was inequality among women in cases of property ownership and property share. 
• Their rights are not necessarily fulfilled, and the daughters never had their part in the family assets.
• The concept was changed as the most important amendment was made to the Hindu Succession Act in 2005, which provided the rights of an equal share in property and assets to the daughters. 
• They were to receive an equal ratio as sons-in-law of inheritance for Succession. 
• Before 2005, the circumstances were different for sons and daughters in terms of Succession. The sons had every right over the property, but married daughters did not have any upper hand or rights. 
• Only an unmarried daughter had a right to receive a property share. After amending laws, the daughter and son have similar legal rights.
• This is different from Muslim law in terms of the laws of inheritance; daughters do not have any rights. Moreover, women have fewer shares and ownership than men.
• Christian law is the same as Hindu law where daughters and sons are given equal space and rights. 

What is a Will?

• A will is a legal instrument through which a person can transfer their acquired or inherited property to their legal heirs. The individual who writes the will voluntarily is the “Testator.”
• They can take legal consultation to understand laws related to property and opt for will registration as it makes it legally enforced and valid. This document expresses their wishes and intentions and what they want to happen after their death.
• A will is made voluntarily and should be written to come into effect after their death. It contains brief notes and information about how the property will be divided and distributed and to whom.
• This became a very useful document as this would omit the chances of disputes in the future and lay the ground for certain shares for every heir.
• Will registration is not mandatory, but it is advisable to complete a registry to make it lawfully valid and valuable. The executor’s name will be mentioned in the will, who will have the authority to distribute the property righteously.

Benefits of Having a Will

1. Prevents Disputes: 

By clearly outlining how assets should be distributed in accordance with the testator’s preferences, a clear and legally binding will help avoid family disputes.

2. Protects Unclaimed Assets: 

By guaranteeing that assets are distributed as intended, a will lowers the possibility that they may go unclaimed or be abused by creditors or distant relatives.

3. Ensures Care for Dependents: 

With the use of a will, you can designate guardians for small children and make provisions for dependents, guaranteeing their care after your passing.

How to Make a Will in India

1. Determine Your Assets 

Make a thorough inventory of all your assets first. Properties, bank accounts, investments, and personal possessions should all be included in this. You can more easily specify what should be given to your beneficiaries if you have a comprehensive list.

2. Appoint an Executor 

Pick a reliable individual to serve as your will’s executor. This person will be in charge of making sure your desires are carried out exactly as specified in your will.

3. Specify Beneficiaries 

The people who will inherit your assets should be clearly identified. To prevent misunderstandings or disagreements, include their complete names, addresses, and the precise portion of each asset they are to get. 

4. Draft the Will

The distribution of assets, the executor’s information, and any special instructions pertaining to the assets should all be included in the will in clear, exact language. You, as the testator, must sign the will, and at least two non-beneficiaries must witness it.

• Title: Clearly state that the document is a will.
• Personal Details: Include your full name, address, and date of birth.
• Declaration: Declare that you are of sound mind and not under any undue influence.
• Revocation of Previous Wills: State that this will revoke all previous wills and codicils.
• Appointment of Executor: Name your executor and any alternate executors.
• Distribution of Assets: Clearly outline how your assets will be distributed among the beneficiaries.
• Guardian for Minor Children: If applicable, name a guardian for your minor children.
• Signature and Date: Sign and date the will in the presence of witnesses.
• Witness Signatures: Ensure the witnesses sign and provide their details.

5. Sign the Will

At least two witnesses must be present when you sign the will. Make sure the witnesses give their information and sign the will as well. To prevent any conflicts of interest, the witnesses should not be the will’s beneficiaries. 

6. Ensure Legal Compliance

As the Indian Succession Act of 1925 regulates the making and carrying out of wills in India, make sure the will complies with its provisions.

Rights of Grandchildren and Spouses

• According to the laws of inheritance, grandchildren have equal rights as their parents on the inherited property/ ancestral property. 
• In the case of Self-acquired, the grandson has rights over the father’s and grandfather’s property. 
• A wife has no right over the family’s ancestral property. A widow or not, she is not included in ancestral properties, which means they have rights only over the self-acquired property. 

Is Registration of will necessary?

Registering your will with the local registrar is advised but not required. This procedure gives the document an additional degree of validity and may assist avert future legal issues. 

Legal Requirements for Creating a Will in India

1. Age and Capacity: 

To guarantee they completely comprehend the ramifications of their choices, the testator, who drafts the will, must be at least eighteen years old and in good mental health.

2. Witnesses:

At least two witnesses must be present when the will is signed, and they must both sign it. In order to prevent any conflicts of interest, these witnesses shouldn’t be beneficiaries.

3. Free Will: 

To ensure that the will accurately reflects the testator’s preferences, it must be made willingly and free from outside pressure, coercion, or improper influence. 

4. Written Document: 

A written will is required.

5. Signature: 

The will must be signed by the testator or by another person under the testator’s supervision and presence.

6. Sound Mind: 

The testator, the person who makes the will, must be of sound mind and free from undue influence.

Conclusion 

The people going through Succession and inheritance rights should take legal consultation to avoid family disputes and confusion. The property lawyer can help with matters and resolve issues simply and promptly after going through the Laws of Inheritance.

Frequently Asked Questions on How to make a will in India

Q1. What is the procedure for making a will?

Ans1. The testator must sign the will in front of two witnesses who are at least eighteen years old and mentally competent. The testator must be present when the two witnesses sign the will. The testator’s assets, beneficiaries, and any other particular terms and conditions must all be spelled out in detail in the will.

Q2. How to create a will in India without a lawyer?

Ans2. In India, it is possible to draft a will without the assistance of a lawyer. To make sure the will satisfies all legal requirements, it is advised to have legal counsel. Legal experts can help people through the process, making sure the will accurately captures the testator’s objectives and is legitimate and unambiguous.