Inheritance in Absence of A Will under Indian Succession Act
An intestate death often causes chaos with families often ending up fighting to get a share of the property. The succession act was created to resolve the impending chaos when a person dies intestate. Through this article, the reader can understand what Intestate is, what are the legal provisions for it and what happens in different conditions of an intestate death.
Tue May 03 2022 | Real Estate, Wills, Probate and Trust | Comments (0)
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The Indian Succession Act came into operation on 30th September 1925 and it seeks to consolidate all Indian Laws relating to succession. It has no retrospective operation and is applicable to intestate and testamentary succession.
INTESTATE SUCCESSION
Intestate means when person dies without making a will, which is capable of taking effect. The property devolves upon the wife or husband or upon the relatives of the deceased in the following manner.
- If A has left no will- He has died intestate in respect of the whole of his property.
- A has left a will, whereby he has appointed B his executor; but the will contains no other provisions- A has died intestate in respect of the distribution of his property.
- A has bequeathed his whole property for an illegal purpose - A has died intestate in respect of the distribution of his property.
- When a will is partially incapable of being operative- A has bequeathed RS 1000 to B and RS 1000 to the eldest son of C, and has made no other bequest; and has died leaving the sum of Rs. 2000.00 and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of Rs.1000.
What Happens if You Die Without a Will and You Are Single?
If you are single and childless, your parents will receive your entire estate if they are both living. Otherwise, it will be divided amongst your siblings (including half-siblings) and your surviving parent, if one parent has already died. If you have no surviving parents at the time of your death, then your entire estate will be divided among siblings, in equal parts. If there are no surviving parents, siblings, or descendants of siblings (nieces and nephews), then the relatives on your mother's side would inherit one-half of the estate, with the other one-half passing to the relatives on your father's side.
If, on the other hand, you are single and have children, then your entire estate generally will go to your children, in equal shares. If any child has died before you, and that child has any children, then that child's share will go to your grandchildren.
What Happens if You Die Without a Will and You Are Married?
Depending on how your assets are owned when you die, your estate will either go entirely to your surviving spouse (if it is community/marital property), or split between your surviving spouse, siblings and parents (if it is your separate property). If you are married and have children with your current spouse, your entire estate will go to your surviving spouse. Otherwise, your surviving spouse will receive up to one-half of the estate, with the remaining portion passing to your surviving children from another spouse or partner.
What Happens if You Die Without a Will and You Are in a Domestic Partnership?
Special rules apply to domestic partners. Since not all states recognize domestic partnerships, it is important to check the laws of your particular state to learn how property is distributed upon your death. Generally, if you die without a will and are survived by a domestic partner, your domestic partner inherits the same as a surviving spouse, depending on how you owned the property.
How Does Dying Without a Will Affect Unmarried Couples?
Dying without a will can be devastating to unmarried couples who are living together. Intestacy laws only recognize relatives, unmarried couples do not inherit the property of the other partner when one partner dies without a will. Unless there is a will which clearly states a person's intentions when they die, the decedent's property will be divided among relatives, depending on their relation to the decedent.
Application
- Hindus, Muslims, Buddhist, Sikh, Jana- This part does not apply to the property of any Hindu, Mohammedan, Buddhist, Sikh or Jaina. Muhammadans are governed by Mohammedan Law of Inheritance and the Hindus Buddhists, Sikhs and Jainas by the Hindu Succession Act, 1956.
Parsis- The following provisions do not apply to Parsis.
Special Marriage Act- Notwithstanding anything contained in the Indian Succession Act with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under the Special Marriage Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act.
However if two persons who are Hindus get married under the Special Marriage Act the above provision does not apply and they are governed by the Hindu Succession Act.
Distribution of property
The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules given below.
However a widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate.
Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.
Where the intestate has a widow-
- if he has also left any lineal descendants, one third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules here in after contained;
- if he left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are of kindred to him, in the order and according to the rules here in after contained:
if he has left none who are of kindred to him, the whole of his property shall belong to his widow.
Lineal descendants mean descendant born in lawful wedlock only.
Where intestate has left no widow, and where he has left no kindred.
Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.
Rights of widower.
A husband surviving his wife has the same rights in respect in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.
Rules of Distribution (Children, Grandchildren Etc. )
The rules for the distribution of the intestate's property (after deducting the widow's share, if he has left a widow) amongst his lineal descendants are as follows.
( Lineal descendants mean descendant born in lawful wedlock only. )
Where intestate has left child or children only.
Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.
Child or children- The word "child" does not include an illegitimate child, but must be one born out of lawful wedlock. The words "any child" mean and include "children" as well.
Where intestate has left no child, but grandchild or grandchildren.
Where the intestate has not left surviving him any child, but has left a grandchild or grandchildren and no more remote descendant through a deceased grandchild, the property shall belong to his surviving grandchild if there is only one, or shall be equally divided among all his surviving grandchildren.
Where intestate has left only great-grandchildren or remoter lineal descendants.
In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.
Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead.
If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him.
One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate
Rules of Distribution (No lineal descendants)
Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow's share, if he has left a widow) are as follows.
Where intestate's father living.
If the intestate's father is living, he shall succeed to the property.
Where intestate's father dead, but his mother, brothers and sisters living.
If the intestate's father is dead, but the intestate's mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate's lifetime are also living, then the mother and each living brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
Where intestate's father dead and his mother and children of any deceased brother or sister living.
If the intestate's father is dead, but the intestate's mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
Where intestate's father dead, but his mother living and no brother, sister, nephew or niece.
If the intestate's father is dead, but the intestate's mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.
Where intestate has left neither lineal descendant, nor father, nor mother.
Where the intestate has left neither lineal descendants, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.
Where the intestate has left neither lineal descendants, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.
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