Have you ever thought what happens when a person dies without a written
WILL ? I know you might have never thought about it because you are not aware
how ugly it gets when will is missing. Money is so powerful that relations
don’t take time to break. Family members can really fight over the issue of who
gets how much out of the wealth and a lot of times unexpected things happen.
Even people you never thought can suddenly appear claiming their share in the
wealth.
A proper written will (and registered one) is the best way to
make sure the wealth is passed on to different people as desired. But in
reality people don’t write will and keep thinking “one day, I will
surely write a will when ..” .
So now coming back to the point, if a will is written, then there is no
confusion and the wealth is divided as per the WILL . However if a WILL is
missing, then the wealth is divided as per Hindu succession Act 1956 laws for
Hindu’s , Jain’s and Sikh’s. We have separate law for Muslims and Christians,
but for this article sake, lets just talk about Hindu succession Act applicable
for Hindu population. Also note that in this article mainly we are
talking about the succession laws related to what happened after death of a
MALE (not female) .
Concept of Legal Heirs
Legal heirs are well defined in the Hindu Succession Act 1956 . All
the relations are categorised into two classes called class I and class II. The
first right on wealth is of Class I heirs. Only if there is no one available in
Class I, then relations under Class II can claim their rights. If Class I &
Class II both are missing , in then there is something called Agnates and
Cognates , but we will talk about it in sometime. For now lets understand Class
I & Class II heirs.
Class I relations
·
Son/Daughter
·
Widow
·
Mother
·
Son/Daughter of a pre-deceased son (per-deceased means “already Dead”)
·
Son/Daughter of a pre-deceased Daughter
·
Widow of a pre-deceased son
·
Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
·
Widow of a pre-deceased son of a predeceased son
Class II relations
·
Father
·
Brother/Sister
·
Son’s daughter’s son/daughter,
·
Daughter’s son’s son/daughter
·
Daughter’s daughter’s son/daughter
·
Sibling son/daughter
·
Father’s Parents
·
Father’s widow
·
Brother’s widow
·
Father’s sibling
·
Mother’s parents
·
Mother’s sibling
If Class I & Class II is missing ?
In the absence of heirs of Class I and Class II, the property is passed
to the agnates and cognates of the deceased
in succession. Now, one person is said to be the agnate, if he/she
is related by blood or adoption wholly through the males chain line.
Similarly, one person is said to be the cognate of the other if the two of them
are related by blood or adoption, but not totally through males, i.e. there has
to be some intervention by a female ancestor somewhere. The first preference is
given to Agnates and only if there is no Agnate, then the Cognates comes into
picture. To understand Agnate/Congate in plain plain Hindi, Its means “Bahut
Door ke Ristedaar”, Agnates are “Door ke Rishtedar” from the chain of Male line
and Cognates are “door ke rishtedar” , but does not compulsory from the chain
of males in the family. But leave this point as of now, I think from
understanding point of view just Class I and Class II is enough for someone.
Note that if there are more than one Widow’s , then they get one share
only and then divide it between themselves and a person immediate family will
also be considered as one unit only.
Some Important Rules and Points
·
A child in womb is treated as a separate child as if he/she was out in
the world , He/she gets separate share in the property.
·
No succession rights if the widow has remarried on the date of
succession.
·
If a person has killed the person from whom he was suppose to acquire
the wealth and has been declared as murderer by law , then he looses his right
of acquiring assets.
·
If there is no heir qualified to succeed to his or her property in
accordance with the provisions of this Act, such property shall go to
the Government.
For Muslims , the succession laws are defined under The Shariat Act
. Under that 50% of the property goes to the Widow irrespective of the number
of other legal heirs (remember in case of Hindu law its equal share between
Widow and children) and rest is shared in equal parts between children
Some Examples
Now based on the learning’s we had till now, lets see 6 examples (not
real) and how the wealth will be divided in each of those cases. I have tried
to take different scenario’s.
Example 1
Lets say Ajay is dead without a will and he has 5 people in his family
·
Wife
·
Two son
·
One daughter
·
Father
In that
case his wife, 2 son and 1 daughter will come under Class I , but his father
will come under Class II , in that case all the 4 people under class I will get
equal share in his wealth. So Wife will get 25% of the wealth, First son will
get 25% , second son will get 25% and daughter will also get 25% of the wealth
(married or unmarried) .
Example 2
Lets say Robert was 60 yrs old. He dies in an accident and has no WILL .
Suppose he has following people in his family
·
Wife
·
Widow of his dead son
·
2 Children of his Dead son
This is an
interesting case , in this there are mainly 2 units . The first one is his Wife
who will get 50% of his wealth and the next unit is the Widow and 2 son of his
dead son who will equally get 50% of the wealth and legally, they all need to
share it in equal amount . Note that this happens considering as if the son was
alive, in which case he would have got 50% share and then his family chain
would claim it from him. So understand that each family here would be 1 unit
and all the members of that unit will again share it back between them with
same principles.
Example 3
Suppose Ajay is dead without a WILL , but his family consists of
·
A pregnant Wife
·
Mother
·
Brother
In this
case , there are 3 entities in the Class I , those are Wife , Mother and the
Child in the Womb, here 1/3rd wealth goes to Wife , 1/3rd goes to the unborn
child and 1/3rd goes to Mother. Note that a child in the womb has same right as
a born child.
Example 4
Suppose Robert dies without a WILL and leaves behind
·
Father
·
Brother
·
2 children of his sister (sister is dead)
In this
case, you can see that Class I has no member, all the members are from class II
, in which case Father will get 1/3rd wealth, Brother will get 1/3rd part and
his sister’s children will get 1/3rd and will divide it between them in equal
parts.
Example 5
Ajay dies without a WILL , his family consists
·
Mother
·
Brother
·
2 Sister’s
·
Widow of one of his dead Brother
Here you
can see that only one person belong’s to class I (mother) and every one else is
in Class II , hence 100% of the property goes to Mother (remember that Class II
gets anything only if there is no one in class I)
Example 6
Ajay acquires a ancestral house from his Father in Pune and has his
personal savings in Bank FD and one flat in Mumbai which he had bought from his
own funds. Now Ajay dies, but he was smart and he has written a WILL and
written that everything goes to his Wife and no one else gets anything. Suppose
his family has
·
Wife
·
Mother
·
Brother
·
Sister
Now what
happens in this case ? In this case, his Bank FD and his flat in Mumbai will
100% go to his Wife and no one else, However his ancestral house in Pune will
be divided equally between all the 4 members. This is because there was a flaw
in the WILL . An ancestral property can not be passed on through a WILL . Ajay
had made a mistake thinking that he can assign the flat in Pune to anyone he
wants . A person can only pass on his wealth through WILL if he has earned it
(think bournville) , if you have acquired it from your older generation, then
it will be claimed by all the legal heirs of the person who is dead, and in
this case both Mother and Wife belong to Class I, so they both get 50% share in
the ancestral property in Mumbai.
Succession Law in case of a Female death
Till now we saw all the rules which are applicable if a person in
question was a dead male , but in case of a female some points are a little
different. The property of a female Hindu dying without WILL shall be
distributed according to the rules set out as following -
1. Firstly, upon the sons and daughters (including the children of any
pre-deceased son or daughter) and the husband;
2. Secondly, upon the heirs of the husband ;
3. Thirdly, upon the mother and father;
4. Fourthly, upon the heirs of the father; and
5. Lastly, upon the heirs of the mother .
2. Secondly, upon the heirs of the husband ;
3. Thirdly, upon the mother and father;
4. Fourthly, upon the heirs of the father; and
5. Lastly, upon the heirs of the mother .
Important Points in case of Women Property
·
If the women has acquired any property from his Father or Mother, in
that case the first right will be of the heirs of her father and not husband,
in case of absence of his sons or daughters
·
If the women has acquired any property from her Husband, in that case
the first right will be of the heirs of her husband , in case of absence
of his sons or daughters
An Example
Suppose Supriya is a widow without any children dies without a WILL. She
has acquired 1 flat in Mumbai from his Father’s, and has acquired one Flat in
Pune from his Husband through a WILL, now suppose Supriya has 3 people in
family.
·
Father in law
·
Mother in law
·
Brother in law
Now understand this case properly , As the person in question here is a
Women, there will be distribution of her property like this-
The flat in Pune was acquired by her from her Father and as she also has
no children, that flat in Pune will go to his Father’s legal heir. if Supriya
had a Sister Poonam, in that case Poonam would be the legal heir of her Father
and she would get 100% of the flat in Mumbai. Supriya’s Family would not be
able to claim it legally.
However the
Flat in Pune was acquired by Supriya from her husband and in this case , her
husband’s legal heir would be claiming it, which means Supriya’s mother in law
would get the absolute right on the Pune Flat because only she comes under
Class I (Father and Brother come under Class II for a Male) .
Conclusion
In case a will is missing and the legal heirs get into fight over
the wealth, things can get ugly and the wealth might to to someone which you
might not have wanted or imagined. Hence writing a WILL should be on a high
priority list . This article just gives a very basic rules, in reality things
can get more complicated and its always advisable to hire a good lawyer in
these cases. This article is just for information and awareness purpose. Dont take
it as the complete guide.
Source :
www.jagoinvestor.com