Me and my brother are living in Kanpur and supporting our family business. We are both married and have children. When our mother died, we faced many difficulties in getting her property transferred to my father’s name. Recently it was found that he has cancer, but he has not made a will. What will be the consequence if he does not make a will?
Name withheld on request
We assume that your father is a Hindu and his property is self-acquired/self-made. Moreover, these qualities are not heritable in nature. Furthermore, we believe that no other person has any right or interest in the property and it belongs only to him.
We wish to point out that if a male dies intestate, that is, without making a will, the Hindu Succession Act, 1956 states, “General rules of succession in the case of males.” The provisions of this Chapter— (a) firstly, upon heirs, being relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of either class, on the tribes of the deceased; and (d) lastly, if there is no gotra, then on the next of kin of the deceased.
Class I legal heirs (whoever is alive) include mother, spouse, children, widow of pre-deceased son, etc. In case there is no Will, Succession Certificate / Legal Heir Certificate is usually obtained from the competent Civil Court.
A succession certificate is a document that gives the right to inherit property to the legal heirs of a person who dies intestate. On the other hand if one makes a Will, one can clearly define and choose a specific beneficiary for a specific property, unlike the default succession law. If your father does not make a will, his property will be bequeathed equally between you and your brother as per the Hindu Succession Act. Making a Will is a straightforward process and can be completed fairly quickly. We would suggest having an open discussion about this with your father as he wants his property to be bequeathed as per his wishes and not as per standard practice law.
Neha Pathak is Head of Trust & Estate Planning, Motilal Oswal Private Wealth
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