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Intestate Succession or Succession Without A Will
Intestate Succession or Succession Without A Will
Intestate Succession or Succession Without A Will
Everyone, not only the affluent, has a lot to share with their family members
especially when it comes to leaving their legacy behind. The wealth inherited
and earned over their lifetime is their gift for future generations. Most people
do not think about leaving this world before they have made a mark and set
aside something for everyone close to them.
But one thing that the past two years have reminded us is the age-old
wisdom that life is ephemeral, and you must be prepared for the worst at all
times.
Being prepared does not mean living in fear or anxiety. It simply means that
you must have a plan B and possibly a plan C if things don’t go your way.
Moreover, you must include your closest confidants (family members) in
your plans – at least they must know where to find your plans.
If you run a business, then succession planning could involve many things –
from voting rights to management control. But today we will discuss the
simplest of such plans sharing your legacy with your heirs.
With a will, you can solve a unique problem faced by people with wealth –
distributing it among family members, close friends, and causes you care
for.
It is common to see a rift in families when dividing the family wealth among
siblings – even when the head of the family is doing it in her/his lifetime.
Therefore, you could only imagine how big fissures might open after you are
not around
But what happens if someone passes away without leaving a will? We will
explore these issues in this article.
Terminology
Class I: The wife, sons, daughters, and the mother of the deceased
are considered their Class I heirs.
Class II: The father, brothers, and sisters are considered Class II heirs
of the deceased. If the father is alive, he has the sole claim over the
property of the deceased. The brothers and sisters can stake an
equal claim only if the father is not alive.
Agnates: An “agnate” is a person who is a relative of the deceased
from their male family members’ side.
Cognates: A “cognate” is a person who is a relative of the deceased
from their male or female family members’ side.
It may or may not list the properties specifically and may or may not
transfer their ownership/usage rights to family members, friends, aides, and
others explicitly.
The will provides for the transfer of wealth upon her/his death. It is not
necessary to register a will, but a registered will can only be superseded by
registering a new will.
Testate: A person may leave behind a written will to control the distribution
of her/his property after their death. Such a succession is called
testamentary succession.
Then such a person is said to have died intestate. Intestacy could be total
(no will at all) or partial (no specific instruction about some properties in the
written will).
Intestate Succession
If you think that when you pass away, your immediate dependents will get y
ou property and wealth, then you can be both right and wrong.
For intestate deaths, the succession laws, according to your religion of birth,
will be applied.
Under it, the male heirs do not become the owner of the joint family
property until after the death of their father.
If you live in other parts of India, then the Mitakshara rules govern
succession. Under it, the male heirs become co-owners (co-parceners) of the
joint family property with birth.
Though, the overall control and management of the property remain with
the eldest male member of the family or Karta.
After the Hindu Succession Act of 1925, these ancient laws are of
significance only in determining the order of claim of legal heirs in an
intestate succession in India.
The 2005 amendment to the Hindu Succession Act gave the female
members (wives, daughters, and daughters-in-law) the same status as their
male counterparts.
When a co-parcener dies, their share in the joint family property is passed to
their legal heirs as follows:
The family property is divided amongst the deceased and their legal
heirs equally. Legal heirs are their spouse, their children, and their
parents.
The share of the deceased family member is now considered their self-
acquired property. The self-acquired property of the deceased is
distributed among their legal heirs according to the succession law.
Self-Acquired Property
1. If any Class I heir exist, they will get the self-acquired property of
the deceased in equal parts.
2. If no Class I heir exists, then the father who is a Class II heir will get
the entire self-acquired property of the deceased. If the father of the
deceased is no more, then other class II heirs will share the property
equally.
3. If neither class I nor class II heirs exist, then the self-acquired
property of the deceased would be distributed equally among the
agnates.
4. Finally, if heirs from none of the above classes exist, then cognates
would equally share the self-acquired property of the deceased.
The succession laws are archaic and do not reflect the true nature of the
relations.
They also do not have any provisions for donating a part of your estate to
causes that you cared for, nor a share to someone you thought was
deserving.
Therefore, by making a will you will complete your financial plan and prepare
for the time when you are not around. Through a will, you can guide your
family members on how to conduct themselves when you are no longer with
them.
You are being responsible for planning for financial security as well as
harmony amongst your loved ones. (Also Read: How a Will help in
securing the financial future of the family?)
Making a will requires admission to oneself of the inevitable. More than a dry
piece of paper, a will is an emotional document requiring courage and a clear
direction.
While making your will, you would encounter enough twists and turns to
confuse you. Your objectivity, love, and impression of a family member will
be tested with each sentence. (Also Read: How to write a WILL in India
– Step by Step guide)
To make a will, you require someone who has adequate knowledge about
your estate and family, and who can guide you in an unbiased manner.
A financial advisor can help you list all properties and financial assets and
help you draft a will that meets your desires. They can also help you update
the will with each significant change in your family, life, or property.
Please note: We are not legal experts. This article is for
informational purposes only. Please consult a legal expert before
acting on anything written in the above article.
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