Writing a will is not a pleasant exercise because it forces you to think about death. While all of us know that we are going to die someday, thinking about it is depressing and there are many in our generation who would say “yeh kya apshagun bol rahe ho(why do you speak of such inauspicious things)?”
A will is a powerful document and quite simple to make. It gives you the ability to distribute your estate (wealth), choose your heirs and appoint guardianship. A will comes into effect only after the death of the person writing it. As already mentioned, making a will is a fairly simple process, but given our reluctance to getting down to doing it, understanding how the property devolves in case of non-existence of a will is very important.
At the outset, let’s get a common misconception out of the way. Many people believe, “I have nominated my heirs where is the need for a will?” According to law, a nominee is a trustee and not the owner of the assets. He/she is only the caretaker of the property. Hence, nominations do not override the applicability of law in cases of estates without wills.
Succession without a will is known as intestate succession and who inherits your property depends on the laws applicable to you which in turn are dependent on your religion.
Let us look at how estate laws and their implications in the case of intestate succession under the Hindu Succession act (applicable to Hindus, Sikhs, Jains and Buddhists).
The laws of inheritance
As per the law, when a Hindu male dies without a will, his estate is divided equally among wife, children and mother. Only in the absences of all three, other blood relatives including father and siblings come into the picture.
While the spirit of including the mother in the estate is understandable, since many do require support, passing on part of the property would also mean that after the mother’s death, the estate will be inherited by her children—the siblings of the deceased man. If this is not a situation which comforts you, it is essential to get your spouse to make a will. The intent is to provide for the mother is necessary and can be achieved through alternative arrangements such as assigning some insurance proceeds or some regular income through a will.
Then comes the more interesting matter of succession for a Hindu woman. This can have wide-ranging consequences for many women.
For a Hindu woman who does not leave behind a will, the property will be inherited by the spouse and children. In the absence of both, the property is divided into three categories:
- property inherited from the parents,
- property inherited from husband & father in-law and
- other property which includes self-earned property.
The first category is inherited by the heirs of the father and the second category by the heirs of the husband. Strangely the third category is inherited by heirs of the husband as well.
A married woman with no Will and no children
On death of a married woman, the property will be inherited by the husband. Later, if the husband dies without a will, the property inherited by him will pass on to his mother. If he is not survived by his mother, then the property will pass on the father, followed by the siblings. Even if the woman had made the will in favour of her spouse, but he does not make a will, the same succession pattern will be followed after his death.
The case of a married but separated woman
If you are in the process of a divorce, it is important for you to make your will now, since in the eyes of the law, you are husband & wife and if something unfortunate were to happen to you, your estate will be inherited by both the spouse and the children.
The law applicable to a divorced woman
In this case the estate will devolve to the children. If there are no children, it will devolve to parents.
Succession of property in the case of a widow
If you are a widow and most of your wealth is self-accumulated, it will still pass on to the heirs of the husband as per law. There is a judgement to this effect in the case of Om Prakash Vs Radha Charan.
This was a case for estate of Narayani who was a widow. Her husband had passed away within a few years of marriage. After her husband’s death, she was thrown out of her matrimonial home by her in-laws. She was educated by her parents, stayed with them, held a good job and accumulated substantial property by herself. There was no contact with her in-laws for 42 years after her husband’s death.
When she passed away without a will, her mother filed an application for a succession certificate and so did her brothers-in-law. Despite knowing the background of the case where the in-laws were not in touch with Narayani for 42 years, the court ruled in favour of the brothers-in-law.
Please do note that all of the above is for people to whom the Hindu succession law applies. For others, succession laws are different.
While some of the above factors can seem irrational, the fact is that these are the laws. And if these seem unfair, it’s better act on it now and write a will. Having a will in place will make sure none of the above scenarios will apply and your wealth gets distributed in the manner that you wish.
Having a will is a must for easy and fair distribution of your wealth according to your desires. After all, it would be a shame if a lifetime of effort towards wealth creation for your loved ones for meeting their aspirations and goals gets derailed because of an unfortunate death intestate.(The writer is a Certified Financial Planner and Founder of Finwise Personal Finance Solutions)