Family & Inheritance

The Hindu Succession Act, 1956 governs. When a Hindu man dies intestate, his property passes first to his Class I heirs, who inherit together and at the same time:

• his widow (if more than one, they share a single portion)
• his sons and daughters, each taking an equal share
• his mother
• the children of a son or daughter who died before him, who take their parent's share between them, and the widow of a son who died before him

Only if there is no Class I heir does the property go to Class II heirs, beginning with his father, and then to more distant relatives.

A Hindu woman's property passes first to her sons and daughters (and the children of any who died before her) and her husband; then to her husband's heirs; then to her mother and father. Property she inherited from her own parents, if she leaves no children, returns to her father's heirs, and property inherited from her husband or father-in-law goes to her husband's heirs.

Joint family property follows its own rules. Since the 2005 amendment a daughter is a coparcener by birth, with the same rights and liabilities as a son, and the Supreme Court has held this applies whether or not her father was alive in 2005. When a coparcener dies, his or her share in the joint family property passes by succession under the Act, not simply to the surviving coparceners.

Muslim succession follows the shares fixed by Islamic law, as applied in India under the Shariat Application Act, 1937. Certain relatives, the sharers, take fixed fractions, and the residue passes to the residuaries. As examples, a widow takes one eighth where there are children and one quarter where there are none, and a husband one quarter or one half on the same basis. Among children, a son generally takes twice a daughter's share.

The Sunni and Shia schools differ in who inherits and in what proportion, so the school a family follows matters. A will can deal with no more than one third of the net estate; the rest passes by these rules.

The Indian Succession Act, 1925 governs. Where a Christian dies leaving a widow and children or other lineal descendants, the widow takes one third and the descendants share the remaining two thirds equally. With no descendants but other relatives, the widow takes half and the relatives the rest, in an order set by the Act. With no relatives at all, everything passes to the widow.

Parsi succession has its own chapter of the Indian Succession Act. In broad terms the surviving spouse and each child take equal shares, and a surviving parent takes half of a child's share.

Succession to the property of a couple married under the Special Marriage Act, 1954, and of their children, is generally governed by the Indian Succession Act rather than either partner's personal law. There is an exception where both partners are Hindu, Sikh, Jain or Buddhist.

• An adopted child inherits as a natural child would, and ceases to inherit from the birth family.
• A divorced spouse is no longer an heir. A widow who remarries keeps what she has already inherited.
• Stepchildren generally have no direct right to inherit from a step-parent who dies without a will. A will is the sure way to provide for them.
• A partner who is not legally married is not an heir under any of these laws. Again, only a will can provide for them.

Knowing who inherits is half the work; heirs must then prove it to whoever holds each asset. Depending on the asset and the place, that may take probate of a will, letters of administration where there is no executor or no will, a succession certificate to collect debts and securities such as deposits and shares, or a legal heir certificate from the revenue authorities. Where heirs agree among themselves how to divide things, a family settlement records it and can save years of litigation.

A will does not remove the need for these steps altogether, but it makes every one of them shorter, and it means the shares are the ones you chose.