Inheritance Rights in India

Right of Inheritance is devolution of the property, titles, debts, rights, and obligations to another person on the death of an individual.

Inheritance Rights

By Shivi Gupta in Property Law

July 24, 2018, 12:02 p.m.

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The loss of a loved one in the family is quite painful but the pain doubles up when disputes with respect to inheritance of property arise. Lack of knowledge about inheritance rights in India is the primary cause of family partition and it becomes important to understand what is the right of inheritance of legal heirs in India.

Right of Inheritance

Right of Inheritance is devolution of the property, titles, debts, rights, and obligations to another person on the death of an individual. A person can succeed to or inherit one’s property in two ways:

  • By a will (testamentary succession)- The person who makes the will is known as the testator and the person in whose favour the will is made is called the legatee.
  • Through laws of intestate succession- In case a person dies without making a will then his property is devolved among his heirs through the laws of intestate succession.

Laws that govern inheritance in India

Different laws are applicable based on types of succession and religion. These include-

  • Hindu Succession Act- The Hindu Succession Act, 1956 is applicable on succession without a will (intestate succession) among Hindus. It also applies to Buddhists, Jains and Sikhs.
  • Indian Succession Act- The Indian Succession Act, 1925 applies to testamentary succession of Hindus, that is transfer of property by a will. A person can transfer his own property to any person he wants by getting a will made. A property lawyer in India can help you drafting a will for your self-acquired property.
 

Types of Property

Under the Indian Property laws, the following kinds of family property are recognised in India:

  • Joint Family property- Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is classified as a joint family property. The family has a common ancestor. It is not a separate entity and has a perpetual existence. 
  • Self-acquired property- If a person acquires a property himself and the property does not belong to the estate of his father, then such property is classified as self-acquired property.
  • Separate property- When a person acquires a property from any other relation, which is not subjected to be treated as joint family property is classified as a separate property.

Inheritance Rights of Children

A son has a right by birth in his father’s and grandfather’s property. He has equal rights with his father and other family members in his grandfather's ancestral property.
In case of his father’s self acquired or separate property, if the father dies without leaving behind a will, then the son being a Class I heir will have equal rights with his living mother, grandmother and sister or brother.
An illegitimate son is not entitled to get a share in his father’s property. A posthumous child, who is in the womb of the mother at the time of death of the father, is entitled to a share in his father’s property. The only condition involved is that he should be alive on his birth.

Daughter’s Inheritance Rights in India

Until 2005, the property rights of son and daughter were different. Only an unmarried daughter had a right in the ancestral property. But post 2005, a daughter has similar rights and duties that a son has. She has an equal right/share in the ancestral property. 
In case of the father’s self acquired or separate property, if the father dies without leaving behind a will, the daughter being a Class I heir will have equal rights with his living mother, grandmother and sister or brother.

Inheritance Rights of Grandchildren

A grandchild, both grandson and granddaughter have an equal share with their father in their grandfather’s ancestral property. In case of grandfather’s self-acquired or separate property, a grandson will have inheritance right only when his father predeceased his grandfather. 

Rights of a Spouse

A wife has no right in the ancestral property. Therefore, a widow has no right over husband’s ancestral property. She being a Class I heir, will have a right in the self-acquired property of her husband. A widowed mother also has a right in her son’s property.

Inheritance Rights of an Adopted Child

The inheritance rights of an adopted child are similar to that of a natural born. Upon adoption, a child loses his rights in the biological family but if a property vests in him before the adoption, then the property will continue to be in his name. 

 

Property type

Wife

Daughter

Son

Right

Ancestral/ joint family property

No right

yes

yes

Both son and daughter have equal rights.

Father’s separate/ self-acquired property while he is living

 

No

No

Father can bequeath the property by will or gift.

Father’s separate/ self-acquired property

yes

Yes

Yes

They have equal rights if the father has not written a will.

 

Will under the Indian Succession Act

A will or testament is a legal document/declaration expressing the will of the person, containing the names of one or more persons who are to manage his estate or acquire his estate after his death. A probate is a copy of the Will, that is certified under the seal of a competent Court with a grant of administration of the estate to the executor/legatee of the testator. It acts as an official evidence of an executor's authority. 
After the death of the person who made the will, a proceeding may be initiated in court to determine the validity of the will that the testator may have created. The proceedings are known as probate proceedings. Generally, during the proceedings, the witnesses are called upon to testify upon the validity of the will. 
The person making the will should be a competent individual, that is, he must not be a minor and should be a person with a sound mind. The probate court only decides upon the validity of the will and does not deal with the case on merits. It is advised to consult top property lawyers in India to understand the legal requirements relating to a will in India.

Conclusion 

Upon death of a person, before dividing the property, the successors must be sure that no debt is attached to the property. Once succession to the property is confirmed, the heir must apply for mutation of property in his own name. Mutation updates the government records and doesn’t act as a transfer of title. Once you acquire the property, you can reside in, lend or sell the property. 

Proper legal advice must be taken from expert family lawyers in India while dealing with inheritance of property.  MyAdvo connects you with the best family lawyers who have vast experience in dealing with inheritance in India. Email us at info@myadvo.in or call us at +919811782573.