By Ashwini Kumar Sharma with Ria Pandit
Niccolò Machiavelli, the famous historian, philosopher and writer of the Renaissance era, once made a humorous remark: “A son can bear with equanimity the loss of his father, but the loss of his inheritance may drive him to despair.” As they say, many a true word is spoken in jest. Five centuries later, we find countless instances of things going disorderly even in the presence of a Will (when there are multiple heirs to a property) and subsequent disputes. Things get even more complicated when the person dies intestate (does not leave behind a Will).
In this story, we will look at how you can ensure hassle-free inheritance of property, especially where there are multiple heirs concerned.
GETTING STARTED
Your approach with regards to the division of inherited property will depend on how you have inherited it. However, even before you think of division of property, be sure that the deceased does not have any outstanding debts. Advise Vipul Maheshwari, managing partner, Maheshwari and Co., a Delhi-based law firm, and Shantha Devi Raman, partner (in the same firm): “If there are any outstanding debts, use the assets to pay them off before any money is distributed to family members.”
You can inherit a property through either a Will or a trust after you have attained a certain age. Clarity in the Will is paramount—any form of ambiguity only complicates matters.
WHAT THE LAW SAYS
Once you inherit a property, as a first step, you should obtain the testator’s Will. For this, you need to file an application, along with the death certificate of the deceased, to the district registrar. The registrar opens the sealed cover, in which the Will is contained, in your presence, and a certified copy of the Will is issued to you. The property is then distributed according to the Will. However, a legal heir can pass on his/her rights to a single or another heir, if he/she wants.
However, if a person dies intestate, the appropriate succession laws come into effect—Hindu, Muslim and the Indian Succession Act, 1925. The Hindu Succession Act, 1956, mainly governs Hindus, Sikhs, Buddhists and Jains. Under it, heirs are defined as Class I and II, agnates (if the two are related by blood or adoption wholly through males) and cognates (if the two are related by blood or adoption, but not wholly through males).
Says Sanjay Chadha, a Delhi-based lawyer specialising in real estate: “According to the Hindu Succession Act, if a Hindu male dies intestate, the property is first passed on to Class I heirs, which include the deceased person’s widow, children and mother, in equal share.” If there are no Class 1 legal heirs, then Class II heirs can claim the property. They include the deceased person’s father, grandchildren, siblings and other relatives, as specified in the law. And in the absence of both Class I and II heirs, the property devolves to agnates and then to cognates.
However, in cases where the property’s ownership is in the name of a woman, her husband and children become equal shareholders of the inherited property upon her death.
In cases where none of them are present, the property can be claimed by her husband’s heirs.
A Muslim can, through a Will, dispose of not more than a third of his estate after paying off debts. The balance two-thirds devolves according to the applicable Shariat Law.
The Indian Succession Act, 1925, is applicable to others including Parsis, Christians, Jews and those persons whose marriage is solemnised under the Special Marriage Act, 1954.
Matter of Trust.
The trust route is usually taken by people whose legal heirs are minors or disabled. A trust helps in safeguarding the interest of the beneficiaries and managing the property till they become eligible or capable to manage it themselves.
“But this is not a common practice in India,” says Chadha.
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