The rights of heirs upon the death of a property owner are explicitly specified in the legal framework of the Indian constitution through several statutes. These laws include the Transfer of Property (Amendment) Act, the Indian Succession Act, and the Hindu Succession Act, amongst others. Let us examine how these statutes may assist if someone passes away intestate, which means they did not leave a will. The transfer of ownership of a Property Inheritance, with its titles, debts, rights, and duties to a legal heir following the property owner’s death, is the primary focus of the inheritance rights associated with that property. As a result of erroneous information and a general lack of understanding about the legality of inheritance, even the most close-knit families may become fractured. It is vital to educate the layperson about these topics.
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There are fundamentally two methods in which a selling inherited property may be passed to an inheritor:
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● Through the use of a will, which is also referred to as testamentary succession. In this kind of succession, the person who creates the will is called the testator, and the person identified as the receiver is called the legatee.
● Through a process known as “intestate succession,” in which the estate is divided up among the people who are legally entitled to it. This is used if the court’s procedure for discovering and proving a will, known as probate, does not uncover a will or other testament.
What is a Property Will?
Wills are legal documents drafted by the person who owns the estate, referred to as the testator. The will specifies how the testator wishes for their assets and things to be distributed after death. In writing a will or a testament, an executor must be selected to manage the estate and its interests.
An executor is often an advocate representing the person who has passed away. The percentage of the distribution of assets inherited by the children or a charity trust, whoever is designated in the will, is detailed in the last will. A court overseeing the probate process is responsible for monitoring how the executor carries out the desires expressed in a will to sell an inherited house.
What are the Rules that Govern the Transfer of Property?
Part IV of the Indian Succession Act, passed in 1925, addresses how a common ancestor relates to the beneficiaries of the testator’s assets. This is also referred to as lineal consanguinity, describing the relationship between a man and his father, grandfather, and so on upwards. The term “collateral consanguinity” refers to the relationship between two people who have a common ancestor but are not directly descended along the same line after that ancestor. Some examples of collateral consanguinity include cousins as well as uncles and nephews. When there is a will, the Indian Succession Act can competently manage the myriad of minutiae involved in an estate’s disposal.
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The Hindu Succession Act of 1956 was passed to address the problem of distributing a dead person’s possessions without a will for inheriting a property, often known as intestate distribution.
To clarify intestate succession rules for Christians, Parsis, Jews, and Muslims, one must refer to sections 30 to 42 of the Indian Succession Act, which was passed in 1925. Intestate succession is defined under the Muslim Shariat Application Act, passed in 1937 and applies only to Muslim families.
Application of the Rules of Intestate Succession Depending on Gender
The Hindu Succession Act, which was passed into law in 1956, specifies the following methods for the transfer of assets:
When a male dies without a will, his assets are distributed among his Class I legal heirs, namely, sons, daughters, mothers, widows, sons of a predeceased son, widows of a predeceased son, sons of pre-deceased sons of a predeceased son, and widows of a predeceased son. In the absence of Class I legal heirs, Class II legal heirs get a portion of the capital gains tax on inherited property Class II legal heirs is given priority in the following order:
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Father
Son’s / daughter’s son
Son’s / daughter’s daughter
Brother
Sister
Daughter’s / son’s son
Daughter’s / son’s daughter
Daughter’s / daughter’s son
Daughter’s /daughter’s daughter
Brother’s son
Sister’s son
Brother’s daughter
According to an amendment that was made to the Act in 2005, the inheritance of a Hindu woman’s inheritance tax on the property is distributed to her heirs in the following order of priority:
● Her sons and daughters, including the offspring of any sons or daughters who had predeceased her, and the husband and the husband’s heirs.
● Her parents, her father and her mother
● Both her mother’s and father’s heirs will inherit from her.
The rules and acts that regulate the execution of a will or the intestate distribution of a person’s tax on the sale of inherited property among their legal successors are written in a way that is not too complicated for the average individual to comprehend. The testator would be better prepared to form a will if the nitty-gritty details of these ordinances were detailed in simple words, and there would be no cause for successors of the testator to disagree with one another after the testator’s passing if these details were revealed.
Inheritance or Bequest in a Will as a Means of Transferring Property
Although it is possible for any of the legal heirs or any other person or persons claiming to be entitled to contest a will or challenge the distribution of the assets of the dead person, it is important to keep in mind that the legal process may be laborious, time-consuming, and expensive. In an ideal situation, if a settlement can be made amongst the family members/heirs/etc., then the same should be executed by executing and, if needed under law, registering the proper papers for the sale of inherited property to guarantee that there is no future disagreement.
The process of proving a will, enforcing a will, or contesting a will is defined by several laws, including the Indian Succession Act of 1925, the Code of Civil Procedure of 1908, and several court regulations. The same procedure should be followed to avoid needless delays in estate administration.
When one receives an inheritance, determining who currently owns the property and has the title to it is the most critical step to take. If a person inherits property, it is the responsibility of the legal heir to have the inherited property changed and transferred into their name, as well as to register the new ownership with the appropriate authorities.
If a will transfers ownership, the will itself must be presented to the registrar, and the mutation must be carried out following the terms of the will. Only a will that has been registered may be used. As a result, it is essential for the person who owns the property and is preparing the will to get the will registered.
Eligibility alone is insufficient to acquire ownership of a property inheritance law in India; more requirements must be met. Depending on the kind of property, the number of heirs qualified to inherit it, their legal rights, and other factors, one must fulfil all necessary legal requirements and transfer the title. To put it another way, to have the ownership of the property changed, the person wishing to do so must be able to provide valid evidence of their inheritance and claim to the land.
Several Changes to the Hindu Succession Act
Daughters were granted equal rights as coparceners due to revisions introduced to the Hindu Succession Act in 2005. These amendments took effect immediately. Nevertheless, the situation was left up to interpretation since the modification was implemented starting on the day it was announced. Still, it did not take into account events before 2005. To put this matter to rest, on August 11, 2020, the Supreme Court (SC), in a landmark judgement, ruled that daughters possess equal rights as coparceners under the Hindu Succession Act, regardless of the day the amendment came into effect.
This ruling was intended to clear up any confusion that may have existed regarding this issue. According to the Apex Court, a daughter automatically acquires her coparcenary rights upon birth. Therefore, the regulations outlined in the Act apply even if the father was already deceased when the modifications were implemented in 2005. Additionally, the daughter’s rights to the coparcenary taxes on inherited property are unaffected by her marriage to the son-in-law.
Building a financially stable future for yourself and your family requires a great deal of patience and planning. Indians who have built wealth through property and real estate have to plan and strategize so that their children could take the best benefits from the property inheritance. If you have any queries regarding legalities involving property inheritance, you must consult the team of real estate experts at NoBroker. They will guide you along the way and clarify any queries. If you’re interested, please leave a comment below this article; our executive will be in touch with you soon.
FAQS
Q. What does the term property mean in the Indian context?
Answer – The term property often refers to real estate and immovable assets of an individual or a family.
Q. What does property inheritance mean?
Answer – Property inheritance is a part of succession where an asset is passed on or transferred to another person within or outside the family.
Q. Does India have any property inheritance law?
Answer – Yes, there are laws regarding property inheritance and according to the Indian laws, any property that is not mentioned in the will of the property owner shall be distributed equally amongst the person’s male/female heirs.
Q. Can daughters stake claim over parents’ property after their death?
Answer – Yes, as per Indian law daughters are eligible for property inheritance in India.
Q. Can I sell a property I inherited?
Answer – Ancestral property cannot be sold without the explicit content and agreement of all successors. Any other property can be sold after permission from the court.
