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Division of property in the absence of a Will

Division of property in the absence of a Will

While you create wealth and assets for your family, do you know how your wealth would be divided among your family members after your demise?

After death, the wealth and property of the deceased are, usually, shared by the family members. However, how the property would be shared often leads to confusions and family tensions if there is no written guideline about the same. A Will, therefore, is required in these cases. A Will is a legal document which specifies the division of the assets of the deceased. It states the property owned by the deceased and gives guidelines on how the property is to be distributed and among whom. A Will, therefore, expresses the intention of the deceased with regards to their property’s division and helps in the allocation of the deceased’s assets. But what if there is no Will?

If there is no Will, the distribution of property depends on the religious laws governing the family. Let’s understand what such laws state –

Distribution of property without a Will as per religious laws

  • In the case of a Hindu family, the property is divided equally between the male’s wife, mother, and children
  • In case of a Christian, the widow would get 1/3rd part of the property and the remaining 2/3rd would be divided between the children
  • For a Parsi family, the widow and each child get an equal share. If there are parents, each parent would get half the share received by one child
  • In case of a Muslim family, only 1/3rd of the deceased’s property can be distributed through a Will. The remaining 2/3rd would be distributed as per their personal succession laws.

Nomination and the role of a nominee

You must have come across the term nomination and appointing a nominee when making investments. Do you know what it means?

Nomination means appointing a nominee to collect the proceeds of your investments in case of your death. A nominee is the designated  person to whom you have given the right to collect your investment proceeds in case of your death. Though the nominee can collect the proceeds, he might not necessarily be the rightful heir. For instance, you might nominate your siblings to collect the money but the rightful heirs would be your children and/or spouse. A nominee acts as a custodian for the asset collected. The nominee should collect the asset and transfer it to the rightful legal heirs of the deceased. However, in many cases, the legal heir is appointed as the nominee in which case the nominee also becomes the beneficiary.

Lack of nomination and property distribution

If a nominee has not been appointed and there is no Will, various documents would be required to obtain the deceased’s property. The legal heirs of the deceased would have to submit a succession certificate which is required to be obtained from a court of law. A succession certificate is a legal document which authenticates the legal heirs of the deceased and gives them the right to get the deceased’s property transferred in their name.

Availing a succession certificate

As stated earlier, a succession certificate is a legal document and so to avail it various steps are required. These include the following –

  • You have to file an application with either a district court or with a High Court who has jurisdiction on the asset to be transferred
  • You would have to mention the name of the person wishing to avail the certificate and his/her relationship with the deceased, name of legal heirs, complete details of the death of the individual and the details of the assets which are to be transferred
  • A copy of the death certificate of the individual should also be submitted
  • Once applied, the court would give notice in the newspaper for a specified period. If no one contests the application for succession, an order is passed by the court to issue the succession certificate
  • A court fee is payable for the court’s services which are expressed as a percentage of the value of the assets which are to be transferred subject to a maximum limit
  • Once the certificate is granted, the deceased’s property can be collected by the legal heirs and transferred in their name

So, understand what a Will is, how it helps and how the property stands to be divided in the absence of a Will. Try and make a Will so that there would be no hassles in the division of your property between your family members after death.

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