A relative who owned property in India has passed away without leaving a will. UK-based family members must work out what they are entitled to. Where there is no will, Indian law establishes the order of heirs and the share each receives, before any asset can be transferred. This post provides an overview of how intestate succession works in India, and what UK-based heirs need to claim their share.
What is intestate succession in India?
Intestate succession is the set of statutory rules that decide who inherits a person’s property when they die without a valid will. The word intestate simply means dying without a will. Where a valid will exists, the estate passes under the will, and these rules do not apply.
Intestate succession is subject to two limits. First, it only governs property the deceased was free to leave. Jointly held or nominated assets may pass outside these rules. Second, the rules cannot be varied by family agreement to defeat a rightful heir. Heirs may, however, later settle among themselves how to divide what each inherits.
India does not have one succession law for everyone. The law that applies is chosen by the religion of the deceased, which is the point most UK-based families do not expect.
For a UK-based family, working out who inherits is the first stage of NRI inheriting property in India.
Why does religion decide which succession law applies?
The succession law for an intestate estate in India is fixed by the religion of the person who died. It does not depend on where the heirs live or what citizenship they hold. This pluralistic system is settled across three main frameworks.
- Hindus, Sikhs, Buddhists and Jains: the Hindu Succession Act 1956.
- Muslims: Muslim Personal Law, applied through the Muslim Personal Law (Shariat) Application Act 1937.
- Christians, Parsis and Jews: the Indian Succession Act 1925.
Residence abroad does not change which framework applies. A Non-Resident Indian (NRI) or an Overseas Citizen of India (OCI) inherits on the same statutory basis as a resident heir. The deceased’s religion, and the nature of the property, decide the result.
Who inherits under the Hindu Succession Act?
The estate of a Hindu who dies intestate passes first to the Class I heirs, who inherit together in equal shares. Class I heirs are the closest family. The Class I list in the Schedule to the Hindu Succession Act 1956 includes the spouse of the deceased, sons, daughters and the mother. Devolution of a male Hindu’s property is governed by section 8 of the Act.
The Class II heirs are more distant relatives ranked in a set order. The father, grandchildren in some lines and siblings sit within the Class II categories. They inherit only where no Class I heir survives.
Daughters now inherit on the same footing as sons. Section 6 of the Act, as amended by the Hindu Succession (Amendment) Act 2005, made a daughter a coparcener by birth in ancestral property. A coparcener is a co-owner with a share from birth. The Supreme Court of India, in Vineeta Sharma v Rakesh Sharma (2020), confirmed that a daughter holds this coparcenary right. It applies whether or not her father was living when the 2005 amendment came into force.
How is a Muslim estate divided when there is no will?
The estate of a Muslim who dies intestate is divided according to Muslim Personal Law. This framework is applied in India through the Muslim Personal Law (Shariat) Application Act 1937.
The near relatives, known as sharers, take prescribed fractional shares of the estate first under this system. Sharers include the spouse, the parents, the daughters and other defined relatives. The residuary heirs receive what remains after the fixed shares are paid. An estate with several surviving relatives needs careful calculation of each entitlement, because the shares are defined and interact with each other.
How do Christians and Parsis inherit under the Indian Succession Act 1925?
The estate of a Christian, Parsi or Jew who dies intestate passes under the Indian Succession Act 1925. It sets out how the estate is shared between the surviving spouse and the children, or other relatives where there are no children.
The surviving spouse of an intestate Indian Christian takes a defined portion of the estate under the Act. Children share the remainder. Parsi intestate succession follows a separate set of rules within the same Act. It has its own order of heirs for the widow, the children and wider relatives. The Supreme Court, in Mary Roy v State of Kerala (1986), confirmed that Syrian Christian daughters inherit equally under the Act.
What documents prove an heir’s entitlement?
An heir proves entitlement with a legal heir certificate, a succession certificate, or letters of administration, and which one applies depends on the asset. Each must be produced before an Indian bank, registrar or company will release what it holds.
A legal heir certificate, issued by the local revenue authority, identifies the surviving heirs. It is used for pensions, provident fund and similar service benefits. A succession certificate is granted by a District Court under the Indian Succession Act 1925. It authorises an heir to collect debts and securities such as bank balances, deposits and shares. A court may instead grant letters of administration where a larger estate needs formal administration.
How can a UK-based heir claim an estate in India?
A UK-based heir can claim an intestate estate without travelling to India. The heir appoints a trusted person there to act under a Power of Attorney executed in the UK. Each step of the claim still happens on the ground in India.
The inherited immovable property must be recorded in the heir’s name through mutation before it can be dealt with or sold. This mutation of property updates ownership in the local revenue and municipal records. The sequence runs from establishing heirship to mutation, the same steps covered when claiming inherited property in India. A Power of Attorney can also be used for selling inherited property in India, letting an attorney complete the sale on the heir’s behalf.
Frequently asked questions
Who inherits property in India if there is no will?
The heirs are fixed by the religion of the person who died. A Hindu estate passes to the Class I heirs in equal shares under the Hindu Succession Act 1956. For a Muslim estate, the property is divided into fixed shares under Muslim Personal Law. Christians and Parsis inherit under the Indian Succession Act 1925.
Do daughters have equal inheritance rights in India?
Yes, for Hindu families. Section 6 of the Hindu Succession Act 1956 was amended in 2005. It makes a daughter a coparcener by birth on the same terms as a son. The Supreme Court confirmed this in Vineeta Sharma v Rakesh Sharma (2020).
Can an NRI or OCI inherit property in India?
Yes. A Non-Resident Indian or Overseas Citizen of India inherits on the same statutory basis as a resident heir. Living in the UK does not reduce or remove the right to inherit an Indian estate.
What is the difference between a legal heir certificate and a succession certificate?
A legal heir certificate is an administrative document from the local revenue office identifying the heirs, used mainly for pensions and service benefits. A succession certificate is granted by a District Court to authorise collection of debts and securities such as bank balances and shares.
Can intestate succession be avoided?
Yes, by making a valid will during your lifetime. A will lets a person direct where their property goes, within the limits of the law that applies to them. Without a will, the estate instead passes under the statutory order of heirs.
How Whytecroft Ford can help
The Whytecroft Ford Indian Law team advises UK-based families on inheriting and dealing with property in India when a relative has died without a will. The team explains where the family stands under the succession law that applies. It identifies the documents needed to prove entitlement. It also prepares the Power of Attorney that lets a trusted person act in India.
To discuss your Indian property situation, call 0208 757 5751 or use the contact form.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Indian Law is subject to change. Please do contact the Whytecroft Ford team if you require further advice.
