If I leave behind property after me, my property can devolve (pass on by law) in two ways:
- By testamentary succession: My properties will devolve upon those persons to whom I give them by my will.
- By intestate succession: If any property is not covered in any will, it will devolve on those relatives stated in that law which applies to me. As we have seen earlier, that law depends on my religious faith.
If we know how my property devolves by intestate succession, we will find answers to the questions : ‘Why make a will?’ and ‘What provisions can I make in a will?’.
I will discuss later everything about wills.
Which properties devolve by intestate succession?
- All my properties, if I have not made a will.
- All my properties, if in a dispute about my will (after me) any court declares that my will is invalid.
- Any property that is not covered by my will.
- Any property covered by any legacy (property given under the will) that has lapsed, that is, has ended. This happens for example, where my sister, to whom I have given any property in my will, dies before me.
- If I am a Muslim, and have made a will, my will cannot operate beyond one-third of my property. Two-third of my properties will devolve by intestate succession.
Law that applies
The religion that I follow will decide the law of intestate succession that will apply to my property, and also who will inherit.
- If I am a Christian, Chapter II of the Indian Succession Act 1925 applies.
- If I am a Parsi, Chapter III of the Indian Succession Act 1925 applies.
- If I am a Hindu, Jain, Sikh or Buddhist, or of any religion not being Muslim, Christian, Parsi or Jew, the Hindu Succession Act 1956 applies.
- If I am a Muslim or a Jew, the Muslim or Jewish personal law applies. This is not codified or enacted by Parliament.
Who will inherit?
Under all these laws, my spouse and children will inherit my property after me, but their shares might be different. Under some of these laws, the mother or father also inherit my property with my spouse and children. I will discuss these shares later.
If I do not have very close relatives (spouse, children, mother, father), all these laws state farther relatives who will inherit, for example: brother, sister.
Else, to even farther relatives, for example: the child of the son of the daughter of the brother of my father’s father.
If I have no relatives, my property will pass on to the Government.
My situation might involve a foreign element. I am a Canadian citizen, domiciled in India, having property in India. I am an Indian citizen, domiciled in India, residing in France. I am an Indian citizen, domiciled in Germany, having immovable or movable property in India. I am an Indian citizen, domiciled in India, having property in Singapore and India. The laws of which country will govern succession to my property after me?
In matters of succession, testamentary or intestate, my domicile at the time of my death is very important. The general rule is as follows:
- Succession to my immovable properties in India will happen by the law of India, wherever I may be domiciled at the time of death, and
- Succession to movable property will happen according to the law of the country of my domicile at the time of my death. Movable property includes intangible property.
Citizenship does not generally matter.
An Indian court deciding any matter about succession to my properties (after me) can apply Indian law to immovable properties in India, and foreign law of succession to properties situated abroad. Or vice versa.
Deciding which law will apply in cases involving foreign element is a complex issue, and beyond discussion in this series about making a will.
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– Nilima Bhadbhade
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