Indian Property, Understanding (Terms) Intestate

by | Jun 7, 2024 | Indian Law, Indian Law Weekly Round-Up, NRI Legal Services, Real Estate, Wills, Probate & Trusts

In Indian property law, the term “intestate” refers to the situation that arises when a person passes away without leaving a valid will.

When this happens, the distribution of the deceased person’s assets and property is governed by the laws of intestate succession.

This is particularly important for non-resident Indians (NRIs) and people of Indian origin who own property in India.

In this article a brief and generalised overview is provided on Indian property – Intestate.

Absence of An Indian Will In Indian Property

In the absence of a will, the laws of intestate succession apply.

This law determines how assets and property will be distributed among legal heirs.

Subsequently, for NRIs and persons of Indian origin, understanding the implications of intestate succession is crucial. This law directly impacts inheritance of their property in India. 

For instance the applicable and specific rules and regulations that apply to intestate succession in Indian property law.

The next section provides a brief overview.

Importance of Documents

When a person passes away intestate, certain documents are required to initiate the process of distributing their assets and property. 

  • These may include substantial legal documents proving the familial relationship between the deceased and the potential heirs.
  • Along with other relevant paperwork as mandated by Indian law, such as death certificate.

Five Key Points Indian Property, Intestate

1. In the absence of a valid will, Indian property laws of intestate succession may come into effect. This law governs the distribution of a deceased person’s assets.

2. NRIs and persons of Indian origin should be familiar with the rules and regulations. As intestate succession may directly affect the inheritance of property in India.

3. Understanding the necessary documentation and legal procedures for intestate succession is essential. Without which an individual may experience obstacles affecting a smooth and fair distribution of assets.

4. It’s recommended to seek professional legal guidance to help navigate the complexities of intestate succession and ensure compliance with relevant laws.

5. By proactively addressing the implications of intestate succession, individuals can effectively safeguard the interests of their heirs. It may also streamline the process of asset distribution in the event of intestacy (depending on individual circumstances).

The following section provides an overview of the Indian Succession Act 1925 in relevance to Indian property (intestate).

Indian Succession Act 1925

The Indian Succession Act came into operation on 30th September 1925. It seeks to consolidate all Indian Laws relating to succession.

  • The Act is applicable both to intestate succession (where property passes in absence of a will).
  • Secondly, in testamentary succession (where there is a will and property is distributed as per that will).

An important point to note is that it has no retrospective operation. 

Along with the Indian Succession Act 1925, the Hindu Succession Act, 1956 and Mohammedan Law govern provide the framework for succession in particular cases. 

These laws provide for the manner of devolution of the properties of the deceased who has died without making a Will, amongst his legal heirs. 

They provide amongst other things, rules as to who are the persons entitled to receive the estate of the deceased and in what proportion.

They also lay down the manner in which the estate of the deceased is to be administered.

(The Indian Succession Act, 1925)

Intestate Succession Under Indian Law

For purposes of determining applicability of laws in case of a succession, it is necessary to determine the domicile of the deceased.

In case of an immovable property located in India, the laws of succession prevailing in India would determine the successors of such property.

In case of movable properties, the laws governing the country of domicile of the deceased would determine the successors of the property.

Domicile is relevant for movable properties while location is relevant for immovable property.

Typical Documents

Some typical documents required for Intestate Succession include, but are not limited to, the following:

  • Death Certificate of the deceased person
  • Identification and address proof of the legal heirs
  • Family Tree or Genealogical Tree
  • Succession Certificate application
  • Affidavits from legal heirs confirming their relationship with the deceased and their right to inherit the property
  • Any other supporting documents as required by the concerned authorities or legal experts which depends on individual, case by case circumstances

Time Scale, Obtaining A Succession Certificate, Indian Property

Usually to obtain a succession certificate the court issues a notice in the newspaper for at least 45 days.

This gives an opportunity to any individual who may have a claim to approach the court and file a claim or if even if they have any objections.

If the court does not receive any objections, it will issue the succession certificate. This process may take up to 6-7 months.

Trust, competence and follow through of the representative matters in deciphering and following due process in property matters in India. These aspects should also be factored into the time frames with leeway for contingency.

Importance of Contingency & Factoring It In

Contingency refers to a future event or circumstance that is possible but cannot be predicted with certainty.

It can also refer to a provision for an unforeseen event or circumstance. In general, contingency implies an event or condition that may or may not occur and is therefore dependent on other events.

Similarly, in cases where a living individual chooses to transfer Indian property, the following may apply.

Methods of Transferring Property For A Living Individual

A transfer can take place when the person is alive through a Gift Deed.

In other cases, a person can claim his right through a partition. 

If you are looking to transfer property in India, it is recommend to seek legal guidance according to requirements.

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