What if a Person Passes Without Leaving a Will?

The transfer of assets of a person is usually done according to their will. The will becomes the controlling factor of how the distribution is to take place. This is known as testamentary succession. In the case where a deceased person fails to bequeath his/her properties, the succession becomes intestate and the law of intestate succession controls the situation.

This law in India is applicable to people on the basis of their religion. The ratio of distribution and the rightful heirs vary according to the person’s religion and each religion has different laws of succession. This difference in laws might be difficult to understand, so we will take a look at them as briefly as possible.

When there is no written will by the deceased, people belonging to Hinduism, Jainism, Buddhism and Sikhism are guided under the Hindu Succession Act, Muslims are governed by the Muslim Law and Christians by the Indian Succession Act.

Hindu Succession Act

The Hindu Succession Act states different laws in the case of the death of a male and the death of a female.

When A Male Dies

In this case, the legal heirs of the deceased are divided into two classes

Class 1

1. If the deceased is married, the wife, children, and mother receive equal shares among them.
2. If the deceased has a deceased son, the son’s wife and children take his place. The children receive one share that is to be further divided among them.
3. If the deceased has a deceased daughter, her children take her place. They receive one share that is to be further divided among them. The husband of the deceased 
4. daughter holds no right to inheritance.

Class 2

If Class 1 heirs are absent, the relatives of the deceased are classified into hierarchical categories. If any member of a higher category is present, the inheritance goes to the members of that category.  The lower categories are considered only when no member of the higher category is present.

If the deceased was married, the hierarchy is as follows

1. Father
2. Granddaughter’s children, Brother, Sister
3. Daughter’s Grandchildren
4. Niece, Nephew
5. Paternal Grandparents
6. Widowed Stepmother, Widowed Sister-in-Law
7. Paternal Aunt, Paternal Uncle
8. Maternal Grandparents
9. Maternal Aunt, Maternal Uncle

If the deceased was unmarried, the hierarchy is as follows

1. Father
2. Brother, Sister
3. Niece, Nephew
4. Paternal Grandparents
5. Widowed Step-Mother, Widowed Sister-in-Law
6. Paternal Aunt, Paternal Uncle
7. Maternal Grandparents
8. Maternal Aunt, Maternal Uncle

When A Female Dies

If the deceased was married, the husband, sons and daughters become her legal heirs. If the children are not alive, the grandchildren also become heirs.

If the deceased was unmarried, her mother and father earn the right to her properties.

If the above-mentioned people are absent, the properties of the deceased are divided on the basis of their acquisition and each category belongs to different heirs.

If the property is self-acquired, the hierarchy is as follows

1. Heirs of the husband
2. Parents of the deceased
3. Heirs of the father
4. Heirs of the mother

If the property is inherited from her parents, the hierarchy is as follows

1. Heirs of the father
2. Heirs of the mother

3. If the property is inherited from her husband or father-in-law, the inheritance belongs to the heirs of her husband.

Some general rules in the Hindu Succession Act are

1. A child in the womb is considered equal to a child that is born.
2. If a person does not want his share of the property, he has the right to deny it.
3. A murderer is disqualified from inheritance.
4. A person with a disease cannot be denied his/her rights to inheritance.
5. In the case of the absence of heirs, the property goes to the government.
6. A remarried widow of the deceased does not lose her right to inheritance. A remarried widow of the son or brother of the deceased loses her right to inheritance. 

Muslim Law of Succession

The law constitutes four sources of Islamic law

• The Holy Qur’an
• The Teachings of the Prophet
• The consensus of scholars of the community
• The deductions of right and wrong from the principles laid

Some general rules under the Muslim Law of Succession are

• When a Muslim dies, the determination of the will of the deceased and the inheritance of properties should only take place after the burial and after all the debts of the deceased are cleared.
• The debt of the deceased is also divided among the heirs in proportion to the shares they receive. The heirs can only use their share for their personal needs after paying their part of the debt and each heir is separately responsible for their share of the debt.
• The concept of birth-right is not part of Muslim law. An heir only earns their right to inheritance if they are alive even after the death of the ancestor.
• The property of the deceased shall not be jointly held by heirs. There are specific shares of the properties that belong to each heir.
• If a Muslim die leaving no legal heirs, the state inherits the properties through the process of escheat. 
• The Muslim law divides heirs into two categories: Sharers and Residuary. Sharers have the right to a portion of the assets of the deceased and the residuary inherits what is left after the sharers have claimed their shares. There is also Distant Kindred who relates by blood but are not sharers or residuary.

Rule of Distribution Under the Sunni Law (Per Capita Distribution)

• The number of shares equals the number of heirs. The first priority goes to the immediate relations and the second in bloodline becomes residuary and so on. If none of the mentioned people exists, the properties belong to the state.
• The wife takes 1/4th of the share if the couple left no lineal descendants, and 1/8th otherwise.
• The husband takes half of the share if the couple left no lineal descendants, and 1/4th otherwise.
• A sole daughter gets a half share, and multiple daughters get 2/3rd collectively.
• If the deceased has left both son(s) and daughter(s), each son receives double what each girl receives. This is considering the fact that the women have the right to Mehr or dowry from the husband’s side when she gets married and the men have the responsibility to provide for their family.

There is also the Shia law which divides the heirs into blood relations and heirs by marriage. The classification of sharers, residuary and distant kindred under Muslim Law are also very extensive and elaborate.

Indian Succession Act

If a Christian dies without leaving a will, the distribution of properties is carried out as per the Indian Succession Act.

• If the widow and lineal descendants exist, the widow gets 1/3rd of the property and the lineal descendants get 2/3rd.
• If there are no lineal descendants, the widow gets half and the kindred gets half.
• If only the widow exists, she gets a full share.
• If only descendants exist, the shares are equally divided among them.
• If only kindred exist, the shares are equally divided among them.
• If the intestate has left no child, but only grandchildren, the property is divided equally among them.
• In the case of complete absence of lineal descendants: Father receives a share after spouse claims their share
• If only the mother, brothers, sisters and children of deceased siblings exist, they receive equal shares. The children of a deceased sibling collectively receive their parent’s share.
• If only the mother exists, she receives the full share.
• If only brothers, sisters and children of deceased siblings exist, they get equal shares. The children of deceased siblings collectively receive their parent’s share,
• If none of the above exists, the nearest degree of kindred receives the share.
• If none of the above exists, the property goes to the state.

As you can see, the laws of inheritance in the case of the absence of a will is extremely complex and can be difficult to follow, especially if there are many claims to the assets.

There are also a lot more details to each law than what has been explained above. A lawyer’s presence, therefore, becomes a very crucial thing in order to avoid clashes.

Also read: What Is an Inheritance and Who Is an Heir?

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