As per the traditional definition of an interstate, it is usually a condition or takes place in the case of an absent or dead owner of the assets, who has left their property without having prepared a will for where the property of the deceased would transfer to. The legal, therefore, is widely used in the laws of inheritance– worldwide.
In this article, we will discuss the importance of the intestate and how the property of a Hindu and other faiths, in the absence of the owner is passed on to the heirs. Can one make their own intestate succession will? Will they cover all assets? Let’s find out!
First things first, who is an heir?
Before we jump into the meaning of intestate succession, we must understand who an heir is.
An heir is an individual who is entitled to inherit assets. It is a widespread fallacy to believe that live people have heirs, as heirs are named at the time of death. When a person dies intestate, that is, without a will, their heirs are determined.
What is the Meaning of an Intestate Inheritance of the Deceased?
Listed below are three incidences where the intestate succession under Hindu law is applicable!
- When there is no will to inherit the property of the deceased – At the time of the owner’s death, the heirs of the property can claim the assets as per the will. However, there are situations where the owner leaves no will behind, then the assets or the property is divided as per the general laws of inheritance, according to the legal provisions applicable, which is based on the religious faith of the owner, also known as the interstate.
- When there is a will assigned in the property to inherit– On the other hand, you must also keep in mind that even if the deceased has left a will upon the intestate beneficiary (who are the heirs) of the property, the state has the rights to first review the will through a process, or “probate,” in order to ensure that a person is valid, authentic, and is entitled to inherit the property. This means that the intestate laws are applicable, until and unless the parties are able to prove that the will is invalid.
- When the will to the property of the deceased can be fulfilled partially or cannot be fulfilled at all -The laws of intestacy will again be applicable in this case, where the similar happens when the late owner has bequeathed his property for an application but can be proved illegal. This is also true in the case, where a person ( the owner) includes only one nominee or an executor without any specific instructions, such as heirs of the Father, heirs of the husband, or son or daughter.
Intestate - the Hindu succession law as opposed to the various faiths present in India
Here is how the intestate of property in accordance with the various faith takes place:
- For those among Hindus, Jains, Sikhs, and Buddhists, the property division of intestate succession among the beneficiary of the legal heirs is done as per the order under the Hindu Succession Act, 1956.
- For Muslims, follow the Mohammedan law of inheritance or, in other cases, the Indian Succession Act, 1925, is applicable.
- As for Christians, the intestate succession law is applicable as per section 30 of the Indian Succession Act, 1925.
Note: The succession laws also differ as per the gender of the asset owner as well, therefore, the assets of a man might not be distributed in the same manner.
What must One know while Preparing a Will in the Intestate Succession Law?
As mentioned above, post the death of the property holder, the assets are divided based on the provisions that are applicable as per the classification of the succession laws. However, on the other hand, in case an owner wishes to distribute their property in a different manner, they must make sure to prepare a Will while they are alive.
The process of which is very easy, there are certain precautions one must keep in mind while writing their Will. For your help, we have listed a few:
1) You can write your own Will
It is completely OK for you to prepare a Will on a plain sheet of paper without any registration for the document. You do not even need a lawyer to draft the document. All you need to do is simply draft the Will on a plain sheet in simple understandable language with legible handwriting.
Make sure to list the assets and distribute them in a proper manner, including the children of any age, the sons and daughters, a joint family property, and if there is no one, to whomever your wish to.
On the other hand, in the case of an aged or a frail disposition, this is not applicable, considering their mental health while making the Will In this case, we recommend involving a lawyer while you carry out the process.
2) Have at least two witnesses in the Will
In order for the Will to be legally valid, it is recommended to attest at least two witnesses who are reliable enough to testify once the provisions come into effect. A word of caution, be acutely conscious when you choose your witnesses for the Will.
3) Should abide by the natural order of succession
While you are creating your Will, you will be given a choice if you wish to divide your property as per your choice. Nonetheless, sadly the laws in regards to this are quite complex. This means, men of the Hindu religion are allowed to write a Will of any property that they are earned and owned, however, in the case of a Hindu woman, that’s not completely true.
Also, always make sure that the Will you write shall be completely honoring the natural order of succession. For instance, a property that is jointly inherited, cannot be transferred to those who do not belong to you via the Will.
4) A Will can be recreated or changed
Based on this Act, a Will can be recreated or changed as and when you feel like, during the due course of your lifetime. However, if you had disclosed the first Will, you will need to follow the same process in order to get it canceled.
5) A Will only come to effect post the demise of the owner
As per the succession law, a Will will only be effective after the demise of the owner and can never be effective before. This is because, as per the law, the creator can always change their Will anytime during their lifetime.
6) It's OK to not disclose the contents of the Will
If you do not wish to disclose the contents of the Will, you are not legally obliged to be forced to do so. However, you must let the parties involved know regarding the drafting and registering. Even as per the law, it is a personal choice to disclose the contents of the Will to the loved ones, or not.
7) Probate of a Will
Probate is an exercise where in order to make the Will legally applicable after the demise of the owner, the ones inheriting it must hire a lawyer and request an order from the court to establish its authenticity. Here, the family members may also be asked to pay a certain percentage of the assets as the court fees.
An Intestate Succession Act is different when it comes into effect based on the owner’s religion, you can get a better understanding from the article above. Also, keep in mind that an intestate succession act is only applicable after the decease of the owner, and a Will must be created in a clear and law-abiding manner.