Inheritance - Right or Charity?Addressing Gender-Based Inheritance Inequality in India
For centuries, Indian women have been unceasingly undervalued and silenced. A consequence of systematic tradition and societal pressure has resulted in thousands of women relinquishing their own property inheritance rights and other rights associated with gender equity within inheritance proceedings. A lack of awareness of existing laws, an insufficient understanding of legal redress options, and the overwhelming consensus that challenging gender norms will bring shame to a family is leading to the sustained deprivation of property inheritance rights for women.
Women’s rights are Human Rights, and are based on values of dignity, fairness, equality and independence. Contrary to the ideologies in the framework behind traditional and long held beliefs, gender inequality and discrimination are curses to human existence, healthy relationships and societal development.
Moreover, it is disappointing to witness how male siblings of this generation in many Indian families, whether living in remote villages as members of lesser educated households or as affluent, refined, and well-placed NRI’s, deprive their female siblings of their rightful share in their parents’ property without remorse and/or reasonable justification, masked under one pretext or another.
Inheritance is a right of all legal heirs, son or daughter alike, and not charity. Parents' assets as well as their life long earnings should belong to all of their heirs equally if they choose to distribute them. There is a strong need for women to realize their deservingness in comparison to their male siblings, and subsequently be assertive in claiming their legal share in place of resigning their claims under the contradicting societal pressure that misconstrued Indian philosophy can perpetuate.
All legal professionals, whether in India or abroad, hold an accountability to their clients to educate and inform them about applicable property transfer and inheritance laws before executing any legal document (whether it is ‘Will’ or ‘Legal Heir No Objection Certificate’), legal redress options available to heirs under the law, and pros and cons of their actions when faced with these pressures and situations. Women can no longer be denied their rights under the premise of normality and lack of awareness.
Any transfer of property involves legal analysis and application of related laws. It must always be done with assistance of trained legal professionals specializing in the field.
TRANSFER OF INHERITANCE TO LEGAL HEIRS
The surviving spouse, sons and daughters are legal heirs of the deceased in almost any jurisdiction. Under Section 10 of Hindu Succession Act of 1956, surviving spouse, surviving mother, sons and daughters, all are Class I heirs, entitled to equal share in the estate of the deceased. If spouse and/or mother does not survive the deceased, property is equally divided among sons and daughters, whether living or not living.
The process begins with appointment of legal representative of the estate of the deceased whose responsibility is to administer the estate and distribute property of the deceased in accordance with law.
ALL LEGAL HEIRS ARE “TENANTS-IN-COMMON”
Upon death, all legal heirs of deceased automatically acquire rights as “Tenants-in-common” in his/her entire estate, whether it is house, land, bank balance, stocks, or life insurance, etc.
Each legal heir has a right to seek partition of the property of the deceased.
LAST WILL AND TESTAMENT: IS IT VALID?
Any Will left by the deceased will be binding on legal heirs only after it is declared by a Court to be a Valid Will. If an Executor has been appointed in the Will, he/she must timely file a Probate Petition in the Court.
This aforementioned process, known as Probate Proceedings, notifies all legal heirs, provides them with an opportunity to bring objections, if any, and adjudicates their claims before granting probate of Will.
It is only after the Court certifies the Will to be valid, grants the Probate and appoints the Executor to represent the estate, the Executor begins administration of the estate. The Executor works under the supervision of Probate Court till distribution of estate is complete.
If the Testator (Writer of Will) did not appoint an Executor, or if the Executor is unwilling or unable to act as such, (or if there is no Will left at all) the Court may appoint someone as the “Administrator” to oversee the disposal of the estate.
RESPONSIBILITIES OF EXECUTOR OR ADMINISTRATOR
The Executor/Administrator must begin the process of Estate Administration and Distribution as follows:
1. Set up a bank account for incoming funds and pay any ongoing bills;
2. Collect all assets and prepare inventory of all assets, i.e.,
Real estate, i.e., Title Deeds, mortgages, Leases, tax information;
Bank Accounts – Title documents and account statements;
Safe Deposit Box/Lockers- Take possession of contents;
Cash that may be hidden around the home;
Life Insurance proceeds, if any;
Business interests; and
Any other possessions of the deceased.
3. File an inventory of the estate’s assets with the court;
4. Provide copy of inventory and title documents of all assets to all legal heirs;
5. Notify banks, credit card companies and government agencies of the decedent’s death;
6. Provide immediate management for rental properties;
7. Maintain properties until it can be distributed or sold;
8. Pay the estate’s debts and taxes; and
9. Distribute assets in accordance with law.
PROBATE VS. FAMILY SETTLEMENT AGREEMENT
The Probate of Will is not mandatory for transfer of assets in many states in India, including Delhi, but is always recommended for a clear title and in order to avoid legal hassles in future. The estate may be settled by the “Family Settlement Deed” duly executed by all legal heirs.The Property shall be mutated in the records of concerned authorities by submitting duly executed “No Objection” Affidavits from all legal heirs.
WHAT IS A NO OBJECTION AFFIDAVIT?
A “No Objection” affidavit is a legal document executed by legal heirs of the deceased, which evidences that he/she has no objection if the property is transferred in the name of the person seeking transfer.
No Legal heir can be compelled to execute a “No Objection” affidavit. If any or all legal heirs disagree on the validity and/or terms of “Will”, and legal heirs are unable to have Family Settlement Agreement, Partition of property is from Court in place of mutual agreement of legal heirs.
THE PROCESS FOR TRANSFER OF PROPERTY, IF THERE IS NO WILL
If the deceased did not execute a “Will” during his/her lifetime, any legal heir may petition the court for a grant of a Letter of Administration, by which the Court appoints an “Administrator” to oversee the distribution of the estate. The role and responsibility of the Administrator and Executor are the same. The property is distributed among legal heirs equally.
MUTUALLY SETTLE ALL ISSUES OF PARTITION OF PROPERTY
The court process is expensive, time consuming, and frustrating. It is better to settle and partition the property by mutual consent, or at least narrow down disagreements. Get yourself acquainted with applicable laws. Obtain legal opinion about your rights and claims. Let trained legal professionals specializing in the field represent you in the settlement process. Do not have one legal professional represent all legal heirs. It is conflict of interest.
Most importantly, be truthful and respect the rights of other legal heirs of the deceased. Do not risk your relationship for small personal gain. Maintain the dignity, fairness and equality which each legal heir is entitled to in order to maintain the human rights to Equality, Recognition as a Person, and Equality before the Law, as stated in Article 2, Article 6, and Article 7 of the Universal Declaration of Human Rights.
In case of disagreement, do not hesitate to get Court assistance. File a Suit for the Partition of Property in Court and let the court decide claims of legal heirs. You are entitled to equality under the law, regardless of the sustained and skewed societal interpretations of inheritance you might have heard as a justification of your plight.
KNOWLEDGE IS POWER. KNOW YOUR RIGHTS. SUPPORT GENDER EQUALITY. CLAIM YOUR RIGHTS. RAISE AWARENESS. STAND UP AGAINST INJUSTICE AND SHARE THIS ARTICLE.