What To Do If There Is No Will?
April 14, 2011 20 Comments
If there’s no will, there’s still a way
The death of a loved one is the most dreaded thing that can happen to any family. It can get even more traumatic when the family realises that the deceased has not left a will behind. In such a situation, the family is usually left running from pillar to post, trying to gain access to the property which, in many cases, could be the only saviour from doom.
However, according to experts, the family can still get its due even in the absence of a will, provided it can get hold of a few documents. “A succession certificate and a copy of the death certificate should solve at least 95-96 % of your problem,” says Sivaramakrishnan, head of legacy planning, Altamount Capital Management .
Usually, a succession certificate is the key document that you need. “In the absence of a will, a succession certificate will be the primary document through which the heirs can stake a claim to the assets of a deceased relative,” says Sivaramakrishnan. A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name.
For a succession certificate, you need to apply to a magistrate or a high court. Usually, courts have a separate cell that issues succession certificates. When it comes to immovable property , there are other documents, like, for instance, a gift deed, that can help. Rajesh Narain Gupta, partner, SN Gupta & Co, says, “In some states, in cases of intestate succession, property can be gifted or the share in the immovable property can be released by the legal heirs to each other. This can be done by executing and registering the gift deed or release deed with the registrar of assurances.”
NOMINATIONS & DEATH CERTIFICATE
For access to the deceased’s bank accounts, the process differs slightly. If the deceased has made some nominations, then naturally , the nominees will claim the balances. “If there is a nomination made by the deceased, then the nominee can claim the balances /investments based on the nomination,” says Gupta. Sivaramakrishnan points out, “Banks, under RBI’s guidelines, are bound to pay to the nominees if the nominations had been registered with the bank. Here registration refers to a confirmation from the concerned bank.”
But for most people, the real problem arises when there is neither a nomination nor a will. What do you do in such a case? “You need a certified copy of the death certificate to gain access to the bank accounts . The banks usually look to see if the deceased had assigned a beneficiary for the account. If there is no beneficiary, then the succession rule would apply,” says Sandeep Nerlekar, managing director and CEO, Warmond Trustees & Executors. Usually, the hospital or the crematorium issues the death certificate.
TRANSFER OF SHARES
As, in most case, securities form a substantial part of assets. “The process of transmission in case of dematerialised holdings is more convenient as the transmission formalities for all securities held in a demat account can be completed by submitting necessary documents to the depositary participant (DP), whereas in case of physical securities the legal heirs/nominee/surviving joint holder has to independently correspond with each company in which securities are held,” says Nerlekar.
“The claimant should also submit to the concerned DP an application in transmission request form (TRF) along with a notarised copy of the death certificate , in case of the death of the sole holder where the sole holder has appointed a nominee,” he adds. Again, a problem will arise when the sole holder has not appointed a nominee. What would you do in such a case? “In such a case, you will need a notarised copy of the death certificate of the holder and any one of the following certificates: succession certificate: a certified copy of the will and the probate (if there is any), a certified copy of the letter of administration (if value of holding is less than . 1 lakh),” says Nerlekar.
MINOR CHILD’S RIGHTS
Imagine a situation where the parent of a child has died suddenly without leaving a will. What can a minor child do in such a case? “A minor child needs to file a case in any court or petition through a guardian under the law or a guardian appointed by the court,” says Gupta. “Although minors have the legal capacity to own property, they do not have legal capacity to manage it,” says Nerlekar. Since minors are legally incapable of handling property , a guardian is appointed from among their relatives to manage the property. “Should no one step forward to be a guardian (under the supervision of Court) on account of the fiduciary nature of the responsibility, the court may appoint a guardian and house the share of the minor with such a guardian,” adds Sivaramakrishanan .
The court also ensures that minors are adequately protected. “If your children inherit a share of your house, your spouse will not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders could be expensive and time-consuming ,” says Nerlekar . And when it comes to investing these assets, the court takes adequate steps to protect them as well. “The court may pass additional orders to protect the interests of minors as to how the assets falling to the hands of minor are to be invested till the minor attains the majority,” informs Gupta.
The real problem arises when there are too many people vying for the same property. This is quite a possibility when the deceased has children, spouse as well as kin. Nerlekar says, “All the heirs may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organised.” In such a situation , relatives should opt for a mutual agreement, feel experts. “If the specific relatives of the deceased have come to a mutual agreement as regards dividing the assets/properties of the deceased , then they may document, sign and witness and file the same to the succession court along with their application.
This mutual agreement must be comprehensive and deal with all known relatives and kindred of the deceased. It cannot be prejudicial to any of the relatives/ kindred. This will greatly speed up the process of issuance of a succession certificate,” says Sivaramakrishnan . But make sure you record your agreement. Gupta adds, “Any such settlement is to be recorded either by way of partition deed duly registered with the sub registrar of assurances or a decree passed by the court or a settlement before the court in a judicial proceeding.”
However, a mutual agreement is not conclusive. “A mutual agreement by itself is not sufficient. You need to get a succession certificate as well,” says Sivaramakrishanan. Even though the problem has a solution, most experts are of the view that it is best to keep a will in place so that your family is saved from the hassles of getting things in order.