Understand Section 372 of the Indian Succession Act in detail

If someone from your family has died intestate and now you are looking to devolve their assets then you must know about a Succession Certificate as it is one of the most crucial documents in case a person has died intestate. So, let’s move on to its details.

Introduction to Succession Certificate

As we have already discussed a Succession Certificate is the key for the devolution of the assets of a person who has died intestate as it acts as a base for the smoother transfer of the assets of the deceased and at the same time to avoids any probable conflicts that may arise amongst the legal heirs in the absence of a valid Will.

A Legal Certificate also provides financial recognition and thereby allowing the legal heirs to settle and claim all the financial matters assets and debts of the deceased. The process of obtaining a Succession Certificate (which has been discussed in the later parts of this article) is defined under the provisions of Section 372 of the Indian Succession Act, 1925. The Act not only defines the procedure for obtaining the Succession Certificate but also specifies the eligibility criteria and the rights of the legal heirs.

What are the main Sections of the Indian Succession Act applicable to the Succession Certificate?

• Section 371: This Section deals with the jurisdiction of the court to which the application for a Succession Certificate is to be filed.

• Section 372 of the act deals with the filing of the application for a Succession Certificate.

• Section 373: This Section deals with the procedure of applying for the Succession Certificate.

• Section 374: This section deals with the contents of a Succession Certificate

• Section 379: Lastly this Section deals with the mode of collecting the fees on a Succession Certificate.

What is the Purpose and Necessity of a Succession Certificate?

• Collection and the Transfer of the Assets: The main aim of a Succession Certificate is the facilitation of the collection and a smoother transfer of the assets of the deceased.

• Prevents Fraudulent Claims: The second most important element of a Succession Certificate is providing a protective shield to the legal heirs of the deceased against any unauthorized or fraudulent claims.

• Ease in accessing the Financial Assets: With the help of this certificate the legal heirs can easily access the bank accounts, stocks, investments, and other financial assets of the deceased.

• Distribution of Assets: A Succession Certificate comes into play when the deceased has died intestate and this is where the Succession Certificate provides a clear path for the legal heirs to obtain their share of the deceased’s property.

What are the Documents required for obtaining a Succession Certificate?

• Death Certificate: The death certificate of the deceased acts as a major document for applying for a Succession Certificate as it confirms the death of the deceased thereby providing a ground to apply for a Succession Certificate.

• Legal Heir Certificate: A legal heir certificate is a legal document that confirms the list of all of the legal heirs of the deceased for establishing a relationship between the claimants.

• Relationship Proofs: Apart from a legal heir certificate a relationship proof between the deceased and the legal heirs is required to be obtained. A birth certificate or a marriage certificate may act as a proof of relationship.

• Identity Proof of the Applicant: The applicant is required to submit their identity and the current residence of the applicant.

• No Objection Certificate: A non-objection certificate is required to be detained from other legal heirs to avoid any kind of future dispute.

• Details of the Property of the Deceased: The applicant is also required to provide the details of all the assets of the deceased to get a better understanding of the claim of the legal heirs.

• Application Form: The most crucial document for filing an application for a Succession Certificate is the application form itself.

• Declarations and Affidavits: Supporting the information provided with the help of these documents is to be either made on a sworn-in affidavit or declaration.

• Court Fees: As we are aware for any court procedure, the payment of the court fees is mandatory which is valued as per the value of the estate.

• Public notices (if any): If there are any public notices published in the newspaper announcing the filing of the application for a Succession Certificate.

Obtaining Succession Certificates for different kinds of Properties

Movable Properties

Movable properties of the deceased cannot be obtained by their legal heirs until and unless the legal heirs because usually the banks do not release the funds or the FD of the deceased unless a Succession Certificate has been obtained by the legal heir.

If a person dies intestate the civil court can grant a Succession Certificate within the jurisdiction where the deceased person last resided. This is the certificate that authenticates and authorises the legal heirs to transfer the assets in their name.

At the same time, the beneficiary of the estate of the deceased is also required to honor any debt or security attached to the property.

Immovable Property

The immovable property transfers the stake by way of the claim and the ownership of the property. The immovable properties are usually transferred by either a Will or the Law of Natural Succession where the properties are inherited by the Class I legal heirs where the transfer is used to take place when the person is alive. Transfer can be in the form of either a Gift or a Partition.

While applying for a Succession Certificate the information that is required to be provided are the time of the death of the deceased or a death certificate, the place of residence of the deceased, the family of the deceased, the residential address of the legal heir, details of any debt or security, evidence of the assets that does not fall into restrictive cases, and the proof of the applicant’s right or the capacity of the successor to be nominated as the legal heir.

The Succession Certificate for Immovable Property is required for:

• Collection of Rent: Though the immovable properties can only be transferred by way of a Transfer or Will a Succession Certificate helps in the collection of the dues and rents from the property.

• The difference in the Application Procedure: Apart from the Succession Certificate there are other documents such as a legal heir certificate, and Will are also required for the transfer of the property.

The Process of Obtaining a Succession Certificate

• Filing of the Application: The first step in the process of obtaining a Succession Certificate is filing an application for the Succession Certificate in the Civil Court. The jurisdiction of the civil court is to where the deceased last resided on when the assets of the deceased are located. The application must contain the personal details of the applicant, the unit of the assets of the deceased and the relationship of the applicant with the deceased.

• Document Verification: The applicant is required to submit all the other documents for verification apart from the above-mentioned -mentioned documents. The documents that can be submitted for verification are a legal heir certificate, death certificate, and relationship proof.

• Preliminary Hearing of the Court: As soon as all the necessary documents have been filed a preliminary hearing by the Civil Court is conducted to check the genuineness, validity of the last and the authenticity of the documents.

• Issuance of the Notices and Summons: In the Preliminary Hearing of the case the court issues the necessary notices and summons to all the necessary parties which may range from the bank officials, other legal heirs, etc.

• Issuance of the Public Notice: After the preliminary hearing of the matter a public notice is issued inviting objections if any within the period of 45 days.

• Final Hearing: After the passing of 45 days and no objections have been raised or if any are raised then after resolving them the court moves towards the final hearing.

• Issuance of the Succession Certificate: The court after the final hearing of the matter issues the Succession Certificate.

• Providing of the Security: The party to whom the Succession Certificate is granted by the court is required to provide security in the form of a bond backed by one or more securities or adequate security to clear all the accounts of debts owned by the deceased

What is the Timeline for Obtaining a Succession Certificate?

The timeline for obtaining a Succession Certificate may take several months which can range between 5-7 months but it totally depends upon different factors which include the amount of the workload upon the courts, the complexity of the involved real estate, and the total time taken to resolve any objections raised.

What is the Cost involved in obtaining a Succession Certificate?

The cost of obtaining a Succession Certificate depends upon the value of the assets usually, it is calculated as 3% of the value of the property. This cost is usually paid by way of judicial stamp papers while filing the application of a Succession Certificate.

What is the Validity of a Succession Certificate?

A Succession Certificate issued in any of the states holds a special significance in India and if the certificate is issued outside India by an Indian Representative then it must follow the Court Fees provided under the Court Fees Act 1870 in order to match it with the validity of a domestically granted certificate.

What are the Limitations of a Succession Certificate?

• Jurisdiction Issues: The most important drawback of a Succession Certificate is that it is only applicable to the jurisdictions where it is used.

• Specific to only Movable Properties: The second drawback of a Succession Certificate is that it is only applicable to movable properties and it does not apply to immovable properties.

• Time-consuming: A Succession Certificate is a time-consuming process that takes around 5-7 months.

• Proof of Title: A Succession Certificate never provides proof of title and it only authorise the holder of the Succession Certificate to collect the debt and securities of the deceased.

• No exemption from taxes: Obtaining a Succession Certificate does not allow any exception to the holder from paying any taxes on the assets so inherited.

• Revoked by a Higher Court: As the obtaining of a Succession Certificate is a time-consuming process and it can also be challenged and revoked by a Higher Court.

• Difficulty in finding Surety: It is requisite that a surety is to be appointed which provides a guarantee that the holder of the Succession Certificate Will fulfill their responsibilities but finding suitable sureties is a cumbersome procedure.

Grounds for Challenging a Succession Certificate

A granted Succession Certificate can be challenged at any time if any of the below-mentioned grounds exist and these are:

• Misrepresentation or Fraud: If the Succession Certificate is obtained by either Fraud or Misrepresentation. This can include cases where the certificate is obtained by providing false information or concealing the relevant facts.

• Forgery: If the documents submitted for obtaining the Succession Certificate are found to be false.

• Dispute related to the Legal Heirs: If there are disagreements about the correct legal heir. This is usually possible in cases of unclear relationships with the deceased or complex family structures.

• Error in the Procedure: There is an issue or error in the procedure of the issuance of the Succession Certificate. In such a case judiciary and courts mandate the re-evaluation to ensure fairness. The error can be related to inadequate notification to the potential legal heirs or the failure to follow due process.

Grounds of Revocation of a Succession Certificate

• Misrepresentation or Fraud: If the Succession Certificate is obtained by either Fraud or Misrepresentation. This can include cases where the certificate is obtained by providing false information or concealing the relevant facts.

• Forgery: If the documents submitted for obtaining the Succession Certificate are found to be false.

• Existence of a Will: If a valid Will of the deceased is found the Succession Certificate is liable to be revoked.

• Existence of a better Legal Heir: If some evidence reveals the existence of a better rightful legal heir than the existing one.

The difference between a Legal Heir Certificate and a Succession Certificate

Legal Heir Certificate	Succession Certificate
A Legal Heir Certificate is required in the case of obtaining pensions, insurance, and other employment benefits.	A Succession Certificate helps in managing and devolving the assets of the deceased person.
A Legal Heir Certificate is issued by the local authorities such as the Tehsildar, Revenue Department or Sub-Divisional Magistrate	A Succession Certificate is issued by the Courts with the help of a Court Order
This Certificate is usually required for dealing with administrative purposes where proof of relationship is required.	This Certificate is required for dealing with the assets and liabilities of the deceased.
This Certificate is not required for the devolution or the transfer of the assets.	This Certificate is required for transferring the interests of the deceased in the assets
This Certificate does not act as a conclusive proof of establishing the inheritance rights.	The Succession Certificate acts as a legal standing and full-proof document for establishing the inheritance rights
A Legal Heir Certificate carries a validity	The Succession Certificate is valid thoroughly until and unless it is canceled or revoked by the Court
A Legal Heir Certificate carries costs related to the payment for the issuance of the Certificate to the local authorities	A Succession Certificate carries costs which include the cost of legal fees, and court expenses
The documents required to obtain a Legal Heir Certificate are a Death Certificate, Proof of Identity of the Legal Heirs, and relationship proof	The documents required to obtain a Succession Certificate are a Death Certificate, Proof of Identity of the Legal heir, details of any assets or liabilities of the deceased, and any existing Will or Testament.
An application is required to be made to the local authorities to obtain a Legal Heir Certificate	A petition in the Civil Court is required to be made for obtaining a Succession Certificate

Conclusion

A Succession Certificate cannot be kept and termed as a Will as a Succession Certificate comes into the picture only when a deceased has died intestate and the devolution of the assets of the deceased becomes complicated. Therefore, to provide fairness and transparency in the devolution of the assets of the deceased a Succession Certificate is required to be obtained. 

Frequently Asked Questions

Q 1. What is Section 372 of the Indian Succession Act?

Ans 1. Section 372 of the Indian Succession Act defines the provisions related to obtaining a Succession Certificate.

Q2. What is a petition under Section 372?

Ans 2. The petition under Section 372 relates to the right of a person who has some interest or title in the debt.

Q 3. What is the difference between a Probate and a Succession Certificate?

Ans 3. The main difference between a Probate and a Succession Certificate is a Probate applicable in the case where the deceased has left a Will while a Succession Certificate comes into play when the testator has died intestate.

Q 4. In which Section Succession Certificate is filed?

Ans 4. A Succession Certificate is filed under Section 380 of the Indian Succession Act

Q 5. Can a legal heir sell the property without a Succession Certificate?

Ans 5. A legal heir can not solely sell the property without a Succession Certificate and without obtaining the Succession Certificate.

Q 6. How much does a lawyer charge for a Succession Certificate?

Ans 6. A lawyer usually charges Rs. 75,000 to Rs 2,50,000 for a Succession Certificate.

Q7. What documents are required for a Succession Certificate?

Ans 7. The required documents for a Succession Certificate are ideally a card, ration card, name of the family members and an affidavit worth rs.20 on a stamp paper.

Q 8. What is the alternative to a Succession Certificate?

Ans 8. The alternatives for a Succession Certificate can be probate, letters of administration, or even indemnity bonds.

Q9. Who Will issue Succession Certificates?

Ans 9. Civil courts issue a Succession Certificate

Q10. How much time does it take to get a Succession Certificate?

Ans 10. The courts usually take around 45 days to issue a Succession Certificate.