What To Do If There Is No Will?
April 14, 2011 20 Comments
I came across this in today’s Economic Times.It is a good article on what legal heirs need to do when a person dies intestate in India.
If there’s no will, there’s still a way
Sakina Babwani
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 .
SUCCESSION CERTIFICATE
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.
MUTUAL AGREEMENTS
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.
About Keerthika Singaravel
wealthymatters 
My mother-in -law has plot at karjat. Nomination for that plot was my father-in-law. Both passed away within duration of 6 months. My wife & her brother both are legal heirs. Mutually they have decided that their flat at mulund will be taken by brother & plot at karjat by my wife. Mulund society flat has been transferred by the society on the basis of indemnity bond & NOC by my wife. But society of karjat plot says they required Succession Certificate which is very long precedure. Is succession Certificate necessary? will by wife has to pay stamp duty for that property? please guide.
If the Karjat Society is a Co-operatuve Housing Society,they have no such right.
Else,the society might be well within its rights to ask for a succession certificate.And unfortunately it involves costs and time.Link
As a gift deed or relinquishment deed will be needed to record the mutual distribution of properties between your wife and her brother,paying stamp duty will become necessary.
Should the plot be agricultural you might have to pay only small sums to get all this paperwork done.And as your brother-in -law and you seem to be on good terms,perhaps you could share the labour and costs involved.
My sister passed away and she has two childrens. Her husband obtained sucsuction certificate for producing to Government office for getting family pension for childrens. We done one partnership agreement for the property my grandfather. For this agreement sisters husband signed on the behalf of sisters children. Is the partnership ship valid? Is any other court order is required?
Anil do give me the details.I can’t understand the situation at all from your question.
Sir.
Our grandfathers land equally divided to me and my sisters by a partition. One of my sister is died earlier. That sister having two
minor childrens. The partition is signed by sisters husband as the gardian of the minor childrens. I want to know the partition is vailed? Or any other legal requirements is needed for partition of minor property?
No,As long as the division is equal,no reason why it is ever likely to be challenged and you can always show how it was fairly done.
Also if your grandfather died without a will,and his wife is also head,all his children together have the right to decide how to divide the property amongst themselves.In the absence of children,the grandchildren could do the same as long as all of them are included in the process and reach an amicable settlement and record it in writing.The settlement has to be mutually agreeable but not necessarily equal,but in case of ill-will suits could be brought in court and cause expenses and hassles.
Sir,
We all the persons in agree the partition. But I want to sold my shears in the partition, the buyers advocate telling that the partition is not valid because the minors property handled not properly. He is telling that minor can chalange the partition when they are comming at major. Is it correct? Is any problems for selling my shear in the partition?
There is that risk always,So if you are certain that your relations don’t want to dispute anything,why don’t you ask the buyer’s advocate to suggest what papers he would want to satisfy himself that his client’s rights will be satisfied?
Good work!Keep it up!
Thanks Matt
Thanks.
Hello Ms. Keerthika, My husband and I have purchased a flat on loan from the bank I’m working with. We have not made any will or succession certificate. In case of death of either of us, would our son and daughter be the natural heirs. My husband’s mother and siblings, would they have any right on this property? Also, the telephone bill and electricity department records, have only my husband’s name. Would this in anyway reduce my claim on the house? (My husband may not agree to making a will / succession certificate)
Some further questions Manasi:
Is the flat registered in your joint names?
Are you co-consignees for the loan?
How is the loan account funded?From a joint bank account or from one of your salary accounts?
The answer to these questions will help establish the owner of the house.
I will do a post on joint ownerships of property,you are likely to find it useful.I have also done a post on intestate succession in case of Hindus https://wealthymatters.com/2013/03/27/intestate-succession-as-per-the-hindu-succession-act1956/#more-5039 .Do read it to understand who inherits self-earned property in case of there being no will.
Yes, there is a possibility your in-laws can make a claim to the house.
If your husband is unlikely to make a will,you could strengthen the case for your children inheriting by registering them as nominees in the property papers.In property matters possession is 9/10ths of the law.So litigation can’t be forestalled but your children’s claims will be strengthened.
Nice Article!
Dear Ms. Keerthika, Thanks for your reply.
My answers are here :
Is the flat registered in your joint names? – Yes, Myself (WIfe) and Husband
Are you co-consignees for the loan? – Not followed the question (I am the main applicant of the loan, and husband is co-applicant)
How is the loan account funded? – Funded fm my Salay Account – his contributes less than 50% by way of NEFT trf to this salary account of mine.
Regards, Manasi
Dear Ms. Keerthika, Another matter is regarding my name in the electricity / telephone bills. I was finding it difficult to show my proof of address since neither of these documents have my name. Of course the Sale Deed (Document we executed for purchase of the flat), has my name first and my husband’s second. Do I have any cause for worry if these bills do not have my name ? Thanks, Manasi
No,
Don’t worry, your position is better.
Normally when a married couple owns a residential property,it becomes the sole property of the surviving spouse in case of the death of the other.Normally this should not cause problems unless there are rifts in the family.
If you fear that in your absence,the rights of your children, will be compromised,speak to your children if they are old enough or some relative who will help them go to court and give them proof of all the facts you revealed in the answers above.
The simplest way to alienate your children’s rights is by first installing your in-laws in this house.So be careful to make certain it doesn’t happen.
Thanks, s. Keethika for your crisp and clear answers. Gud Day. Regards, Manasi
Your welcome.