How is property inherited when there is no will?
It depends on the personal law of the person who has died. For Hindus, Buddhists, Jains and Sikhs, the Hindu Succession Act, 1956 applies, and the property passes first to the Class I heirs, who include the widow, sons, daughters and mother and who inherit together rather than one after another. Since the 2005 amendment, a daughter is a coparcener by birth in a Hindu joint family, with the same rights in coparcenary property as a son. For Christians and Parsis the Indian Succession Act, 1925 applies, and for Muslims, Muslim personal law.
Our probate lawyers advise individuals, families, business owners and non-resident Indians on wills, trusts and the orderly transfer of family wealth, and act in probate, succession and partition proceedings. We also assist foreign executors, administrators, estate lawyers and heir researchers with the Indian side of estates administered abroad.
What the practice covers
- Wills and estate structuring. Drafting wills, family settlements and private trusts under the Indian Trusts Act, 1882, and family governance arrangements.
- Probate and letters of administration. Applications for probate and letters of administration, the transmission of assets and the distribution of the estate.
- Succession certificates. Applications to the District Judge where there is no will, so that bank deposits, shares and other debts owed to the deceased can be collected.
- Contested succession and family disputes. Contested wills, trust disputes and partition suits, resolved through mediation or litigation.
- Cross-border estates. The Indian side of estates administered abroad: identifying and tracing legal heirs in India, obtaining and verifying Indian records, proof of relationship, apostille of documents, and the collection and transmission of Indian assets, including repatriation under the foreign exchange rules.
Where there is no will
When someone dies without a will, the personal law that applied to them decides who inherits, and a bank or company holding their money will usually want a court’s authority before releasing it. That authority is most often a succession certificate. Where there is a will, the equivalent step is probate, or letters of administration where no executor was appointed.
Land transactions and property documentation are handled in the firm’s land and property practice.
Estates with an international element
Many estates administered in the United States, the United Kingdom, Europe and elsewhere have heirs, assets or records in India. Foreign courts, executors, administrators and Public Administrators then need reliable information on who the Indian heirs are, how each relationship can be proved, and how Indian assets can be dealt with.
We assist foreign counsel, fiduciaries and genealogical researchers with the Indian side of such estates: locating and verifying heirs; obtaining certified copies of birth, death, marriage and revenue records; preparing affidavits of heirship and relationship; apostille through the Ministry of External Affairs; and proceedings in Indian courts for succession certificates, probate or letters of administration. We also advise non-resident Indians who inherit property in India on title, transfer and repatriation.
Common questions
What is a succession certificate and when is one needed?
A succession certificate is granted by a civil court under Part X of the Indian Succession Act, 1925 and authorises the holder to collect debts and securities belonging to a deceased person. It is typically required where someone has died without a will and a bank, company or debtor wants an order of the court before releasing money or transferring securities. The application is made to the District Judge with jurisdiction, and the court issues a public notice inviting objections before granting it.
Is a legal heir certificate the same as a succession certificate?
No. A legal heir certificate is issued by the revenue authorities, usually the Tehsildar, and identifies the heirs of the deceased. A succession certificate is granted by a civil court under the Indian Succession Act, 1925 and authorises the holder to collect debts and securities such as bank deposits and shares. Banks and companies often ask for the second where the sums involved are significant.
Where is an application for a succession certificate made?
To the District Judge within whose jurisdiction the deceased ordinarily resided at the time of death, or where that is not determinable, where any part of the property is situated.
Does a succession certificate cover immovable property?
No. It relates to debts and securities. Immovable property generally passes by a different route, and where a will exists probate or letters of administration may be the appropriate application.
How long does the succession certificate procedure take?
It varies with the court and whether objections are filed. The statutory public notice period alone means the process is not immediate, and a contested application takes considerably longer than an uncontested one.
When is probate of a will required?
Probate is a copy of a will certified under the seal of a court of competent jurisdiction, with a grant of administration of the estate to the executor. Under Section 213 of the Indian Succession Act, 1925 it is compulsory for wills made by Hindus, Buddhists, Sikhs and Jains within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, or concerning immovable property there. Elsewhere, including Delhi, it is not compulsory by law, though banks and registrars often ask for it.
Is it compulsory to register a will?
No. Registration of a will under the Registration Act, 1908 is optional, but a will must be signed by the testator and attested by at least two witnesses under Section 63 of the Indian Succession Act, 1925. Registration can make it harder to dispute that the will was executed.
On what grounds can a will be challenged?
Commonly lack of testamentary capacity, undue influence, coercion or fraud, forgery, or defective execution and attestation. The person propounding the will must prove its due execution and dispel any suspicious circumstances.
Can a foreign executor deal with assets in India?
Generally, an executor or administrator appointed abroad must first obtain a grant in India before banks, companies or registrars will act: probate or letters of administration, often limited to the Indian assets, or a succession certificate for debts and securities. Under Section 228 of the Indian Succession Act, 1925, letters of administration may be granted with an authenticated copy of a will proved abroad annexed.
Can a non-resident Indian or foreign citizen inherit property in India?
Yes. Inheritance of property in India by persons resident outside India is permitted, subject to the Foreign Exchange Management Act, 1999 and the rules made under it, which distinguish between non-resident Indians, Overseas Citizens of India and other foreign nationals, and between agricultural and other property. Sale proceeds of inherited property may be repatriated within the limits and procedure prescribed by the Reserve Bank of India.