Legal heirs, NRI’s and Resident Indians alike, must recognize that ALL financial affairs of the deceased are required to be laid to rest immediately after his/her passing away.
Legal representative of the deceased is required to be appointed to pay outstanding debts and bills, file tax returns, and transfer ownership of assets of the deceased to lawful successors in accordance with law.
No Transfer, no rights. Without transfer, all assets of the deceased are frozen. No legal heir, including surviving spouse, has any authority to access, sell or transfer any asset to himself/herself or to any third-party.
All legal heirs of the deceased are co-owners of all assets left behind by the deceased, till proven otherwise. Hence, rights of legal heirs must be determined, if disputed.
If “Will” claimed, the document has to be put to real legal test.
“Will” is not anyone's wish, but a financial and estate planning legal document, which, if does not comply with specific legal requirements, has no legal sanctity and binding force.
Claimant of “Will” has burden of proof to establish validity and proper execution before depriving other legal heirs of their equal share of succession.
All legal heirs must obtain independent legal advised from qualified legal professionals to know thier options before relinquishing inheritance share, and timely initiate required proceedings.
Let us examine two court supervised legal options, Administration and Partition, provided by laws of India to legal heirs (Hindu, Buddhist, Sikh or Jain) to claim inheritance.
"Administration" and "Partition" are two distinct court proceedings for transfer of inheritance.
The purpose of "Administration" Proceedings is appointing one or more legal heirs as legal representative of the deceased and transfer of ownership of assets of the deceased to lawful owners under court supervision.
On the other hand, "Partition" proceedings may be filed by any legal heir requesting court to declare his/her inheritance share and transfer the same by physical separation, or sale of assets if required.
Option 1: Administration of Assets of the Deceased
Proceedings for “Probate” and “Letter of Administration”
Under Indian Succession Act, 1925
Court proceedings, seeking appointment of legal representative and authorization to transfer assets to lawful owners, are known as "Probate" and "Letter of Administration" proceedings.
Is it mandatory to initiate such proceedings?
Under Indian Succession Act, 1925, “Probate” or “Letter of Administration” are mandatory for transfer of ownership of assets, whenever, legal heirs (Hindu, Buddhist, Sikh, or Jain) are unable to have unanimous agreement for out of court settlement for transfer of ownership of assets of the deceased.
The Proceedings are also mandatory when any asset of the deceased is located in or deceased had permanent abode at the time of his/her death, in State of Maharashtra, West Bengal, and Tamil Nadu.
Who May Initiate “Probate” Proceedings?
“Probate” proceedings may be initiated by an individual/entity, who claims existence of "Will" of the deceased and his/her name listed in the document as "Executor".
"Probate" is certification by court that the claimed document is valid and duly executed.
Upon filing of Petition and supporting documents by named "Executor", the Court notifies all other legal heirs and affords them an opportunity to submit objections, if any, for consideration of court.
The Court conducts proper hearing, records testimony of attesting and other witnesses, and makes determination on validity and proper execution of claimed "Will".
If court grants "Probate", it requires named "Executor" to pay processing/court fee on net assets of the deceased before authorizing him/her to act as "Executor" of "Will" of the deceased.
"Executor" collects assets, prepares inventory of all assets and liabilities of the deceased, obtains valuation, submits report before court, and pays processing/court fee. All legal heirs are provided copy of all documents filed in court.
If court denies grant of Probate of Will, all legal heirs are entitled to equal share in the estate of the deceased.
Who may initiate “Letter of Administration” Proceedings?
The proceedings for “Letter of Administration” may be filed by any legal heir, with or without claiming “Will”.
If “Executor” named in claimed “Will” is not willing or able to be appointed as legal representative of the deceased, any legal heir may initiate the proceedings.
Role and responsibilities of "Administrator" are the same as that of "Executor".
Processing Fee for “Probate” and “Letter of Administration” Proceedings
The processing fee for any court action is determined by relief sought and is payable in accordance with the Court Fee Act of the State where action is initiated.
The Processing fee for “Probate” and “Letter of Administration” in Delhi is as follows:
2%, When Net Value of Assets of the Deceased is between Rs. 1,000 to Rs. 10,000;
2.5%, When Net Value of Assets of the Deceased is between Rs. 10,000 to Rs. 50,000
3%, When Net Value of Assets of the Deceased is Over Rs. 50,000
Legal heir may initiate the proceedings by paying minimum fee, i.e. Rs. 200 (2% of Rs. 10,000), as net value of assets is not known, with an undertaking that petitioner shall pay the required court fee as per the schedule before grant of “Probate” or “Letter of Administration”, as the case may be.
The "Executor" of "Administrator" is authorized to legally represent the deceased only after he/she deposits the processing/court fee set by statute.
Option 2: Declaration and Partition
under Specific Relief Act, 1963 and Code of Civil Procedure, 1908
Second option available to legal heirs is seeking "Partition" of his/her inheritance share and transfer ownership of the same to himself/herself.
"Partition" means physical division or sale of assets of the deceased, if required to separate share.
Before initiating partition proceedings, legal heir is required to send legal notice to all legal heirs, describing assets of the deceased, share of each co-owner, and action to be taken.
If other legal heirs neglect to respond or dispute the claim, legal heir may initiate partition proceedings seeking declaration and partition from court of competent jurisdiction under Section 34 of the Specific Releif Act, 1963, relevant partition acts, and Code of Civil Procedure, 1908. Legal heir may also seek rendition of accounts, along with partition of his/her share.
The Court determines validity of plaintiff’s claim, after conducting hearing, and assigns individual ownership of the property to the co-owners.
The Court enters preliminary Decree under Order 20 Rule 18 of Code of Civil Procedure, 1908, where the court determines right/share of Plaintiff in the estate of the decease, and then final decree of partition by metes and bounds under Order 26 Rule 13 of Code of Civil Procedure, 1908.
If Court determines that the assets of the deceased cannot be partitioned without further inquiry, court appoints Commissioner for evaluation, sale of property, if required, and partition share of legal heir seeking "Partition".
The court may enter a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds, if the court can conveniently and without further enquiry make the division, or where parties agree upon the manner of division.
Processing Fee for Suit for Declaration and Partition
The processing/court fee payable for suit for Declaration and Partition is based on reliefs sought in the proceedings and as set in the Court Fee Act of the State where suit is filed.
In Delhi, processing fee payable is-
Suit for Declaration Rs. 20 each declaration
Suit for Partition of share in Estate Minimum - Rs. 1,000
In nut shell, legal processes are simple are well-defined to assist legal heirs in initiating action to protect their inheritance from illegal acquisition of other legal heirs as well as third-parties. Timely action is crucial.
Author: Santosh K. Pawar is managing attorney of Law Firm of Santosh K. Pawar. She is licensed to practice in India and U.S. (state of New York), and specializes in NRI legal counseling and services besides US Immigration, Family Law, and Property Laws. For more information and assistance, contact by email at firstname.lastname@example.org, call at (585) 264-1649 or WhatsApp at (585) 474-0935.