When do NRIs need a Succession Certificate and Legal heir Certificate?

When do NRIs need a Succession Certificate and Legal heir Certificate

 

Summary
The article provides a detailed analysis of the concept of succession certificate, legal heir certificate and its need and purpose and procedure to obtain the same. The article specifically focuses on the purpose and procedure of obtaining both certificates.

Succession Certificate

Basically, a succession certificate refers to a certificate that is provided to the successor of a deceased person who died without writing a will. In simple words, it is provided to a successor in case of death of the owner of the property who has not made a will that can establish the fact of the authenticity of the successor.

Apart from that, the succession certificate also provides the authority to the successor to own the debts and security of the deceased person. The deceased person’s debt payment and his securities will be transferred to the succession certificate holder.

Obtaining a Succession Certificate

A succession certificate can be obtained from a district court of the prescribed jurisdiction. For example, if the jurisdiction is Punjab, then the succession certificate will be obtained from Punjab. It is issued by the district judge according to the specified jurisdiction. To obtain a succession certificate, a petition needs to be prepared accordingly and submitted to the specified district court in that jurisdiction.

It is to be noted that the jurisdiction of the district court where the petition is being filed to obtain the succession certificate must be the place where the deceased person was residing at the time of the death. In case, of non-availability of any such place, the relevant jurisdiction will be the area within which any property of the deceased person belongs.

Procedure to Obtain a Succession Certificate

The details of the legal procedure on how to get the succession certificate is provided below:

Step 1: Petition Preparation

The applicant has to prepare a petition to obtain a Succession Certificate and submit the same to the district Judge of the relevant jurisdiction with payment of required fees in respect of obtaining the certificate.

Step 2: Submission of Petition to Court

After submission of the petition, the district judge will provide an opportunity of being heard by the petitioner in the preliminary hearing and in case the petition is admitted, the district Judge will then provide a final hearing date in this regard and accordingly, notices will be sent to the relevant parties.

Step 3: Granting of Certificate

On the date of hearing, after hearing all the relevant parties, accordingly, the district judge will decide if the applicant has the right to apply for the succession certificate and if he is satisfied, then he will grant the succession certificate.

 Step 4: Submission of Bond

Apart from the required details in the petition, the district judge can also ask to provide a bond with surety or any other security to ensure that there will be no misuse of the succession certificate in any form or manner. It is also to be noted that if required, the district judge may grant an extension with regard to security.

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Particulars of the Succession Certificate Petition

The Succession Certificate must be signed and verified by the application prior to submission to the district Judge. The content of the Succession Certificate Petition includes the following;

  • The date and time of death of the deceased
  • The address of the ordinary residence of the deceased at the time of death; if the ordinary residence is unavailable, then the property details of the deceased within the specified jurisdiction of the district judge must be provided.
  • The details of relatives or family members of the deceased must be provided along with their residential addresses.
  • The rights of the applicants/petitioner must be explained.
  • Details of the securities or debt with regard to the application.

Validity of Succession Certificate

According to Indian Law, the succession certificate is valid anywhere within India. However, it is to be noted that in case the succession certificate is granted in a country outside India by a representative of India who may be appointed by the Government of India and the same is accredited to the state, then the succession certificate will be valid until and unless it is properly stamped according to the provisions of Court Fees Act, 1870 so that it can have the same validity in India as if it is granted in India.

Effects of the Succession Certificate

One of the objectives of the succession certificate is to protect the relevant parties paying the debts in case the payments are being made in good faith. The holder of the succession certificate has the authority to receive the dividend/interest on securities and can make negotiations or transfer the securities as per his wish, as mentioned in the succession certificate. Hence, all the payments made or received by the succession certificate holder will be legally valid on behalf of the deceased. However, it is to be noted that the succession certificate holder is the owner of such securities or legal heir. The legal heir of a deceased person is determined by a different procedure of law in India. One should contact a property lawyer or a law firm, or a property management firm for all such information regarding succession and legal heir certificate.

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Succession Certificate and Wills

In case the deceased has left a Will, in that case, there is no requirement of succession certificate to inherit the assets or properties of the deceased as the entire assets of the deceased will be executed by the executor of the Will for the distribution according to the instructions as provided in the Will.

Though, according to the provisions of Section 370 of the Indian Succession Act, 1925, a succession certificate will not be granted with regard to the securities and debts in case the right of the property is meant to be established by getting administration letters or probate, in some states. Further, it is also to be noted that in case of deceased has not left a Will, then the financial institutions and banks will rely on the legal heir certificate or succession certificate.

Legal Heir Certificate

In case of the sudden and untimely demise of a family member, a legal heir certificate is required to transfer the assets of the deceased person to his or her legal heir. A legal heir certificate is a crucial document for the establishment of the relationship with the deceased person and the actual legal heir. The successor can apply for the legal heir certificate after obtaining the death certificate of the deceased person from the municipal corporation to claim the rights over the properties or dues of the deceased. Generally, a property lawyer is being hired for this work as lawyers can draft legal heir certificates. NRIs who are residing out of India also require a legal heir certificate to inherit the property located in India.

Purpose of a Legal Heir Certificate

A legal heir certificate establishes the fact that the rightful successor can claim the properties or assets of the deceased. It is mandatory for all the eligible successors of the property to have a legal heir certificate to claim the properties or assets of the deceased. The main purposes of the legal heir certificate have been provided below;

  • To transfer the properties or assets of the deceased to its lawful and rightful successors.
  • To claim insurance money, if any.
  • To process and sanction the family pension of the deceased in case he was an employee.
  • To receive dues from various funds such as gratuity, provident fund etc., from the Government of India or any other private organizations.
  • To receive arrears or salary of the deceased in case he was employed by central or state government.
  • To get compassionate appointments based on the employment of the deceased.

Who Can Apply for A Legal Heir Certificate?

The below-mentioned persons can claim or be considered for a legal heir certificate under the laws of India:

  • The deceased’s spouse/partner
  • The deceased’s Children it may be son or daughter.
  • The deceased’s Parents

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Procedure to Obtain a Legal Heir Certificate

Legal Heir certificate can be obtained from any municipal corporation office, Taluk Tahsildhar or from a district court. This certificate is issued after a property inquiry mentioning all the names of the legal heirs of the deceased. The detailed procedure of obtaining a legal heir certificate has been explained below;

  • The legitimate heir of the deceased person should approach the relevant authority in their respective jurisdiction for the legal heir certificate. The applicant should fill out the application form and submit the duly signed application form to the concerned authority. The application form will contain the names of all legal heirs, their relationship status with the deceased, and their addresses.
  • All the required documents as specified, such as the death certificate of the deceased, must be attached to the application form. It is to be noted that the death certificate can be obtained from a municipal corporation office.
  •  A self-declaration or an affidavit on stamp paper must be submitted along with the duly filled in application form.
  • The administrative officer of revenue will conduct an inspection and accordingly will complete the enquiry process.
  • The authorized officer will issue the Legal heir certificate once the enquiry is completed successfully,

The aforesaid process to get a legal heir certificate will take at least 30 days. In case there is a delay receiving the certificate or the failure of responding on the end of the concerned authorities then, you can approach the sub-collector or the Revenue Division Officer (RDO).

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Documents Needed to get a Legal Heir Certificate

 The following are some of the documents required to obtain a legal heir certificate;

  • Application Form duly Signed
  •  Applicant’s Identity proof (voter’s ID card, Aadhaar Card, Driving License, Passport or any other government-issued identity card.)
  • Applicant’s Address proof (telephone/mobile bill, gas bill, bank passbook with the name and address)
  • Deceased’s Death certificate
  • Deceased’s Address Proof
  •  All legal heir’s Date of Birth Certificate (In case there is no birth certificate, then school transfer/leaving certificate, PAN card, passport etc.)
  • A self-undertaking affidavit.

Validity of Legal Heir Certificate

The usage and validity of the legal heir certificate is limited to some of the matters, including insurance claims, registration of property, to claim employee benefits of the deceased etc. It is to be noted that a legal heir certificate is not acceptable as conclusive evidence as per the provision of succession law in India.

The distinction between Succession Certificate and Legal Heir Certificate

Most of the people think that succession and legal heir certificate are the same. However, there is a difference between a succession certificate and a legal heir certificate. Generally, a succession certificate is issued by a civil court and the procedures to obtain these certificates are different.

Revocation of the Succession Certificate

Grant of Succession can be revoked. Section 383 of the Limitation Act, 1963 provides the relevant grounds based on which a succession certificate can be revoked.

Clause (a) of Section 383, Limitation Act, 1963, provides the provision for revocation in case the proceedings are found to be defective. However, at the same time, the term “defective” here refers to the defect in conducting the proceedings should be with regard to the influence of the grant of the succession certificate or causing any sort of harm or prejudice to any party. It can suffice revocation if a formal technical defect is found.

Similarly, clause (b) Section 382 of the Limitation Act, 1963 provides two grounds in respect of revocation. Firstly, the certificate can be revoked if it is obtained by undergoing a fraudulent activity. Secondly, the certificate can be revoked in case some relevant facts have not been disclosed.

As per this section, a phrase “Something material to the case” provides that concealment or disclosure of the facts is a must as it can affect the proceedings. In simple words, some facts can lead the court to deny or refuse to grant the certificate as some of the facts are not been disclosed as required. Similarly, if the disclosure of some of the facts cannot safeguard the best interests of some family members and relatives of the deceased, then such facts can materially affect the case.

Revocation of Legal heir Certificate

According to Section 383 of Limitation Act 1963, a legal heir certificate can be revoked due to the following reasons;

  • The legal heir certificate obtained was defective.
  • The legal certificate has been obtained fraudulently.
  • The certificates has become inoperative or of no use due to circumstances.

In the matter of revocation of legal heir certificate, the court noted that in order to get the legal heir certificate revoked granted under the provisions of Section 2 of Bombay Regulation VIII of 1827, the applicant in the revocation application must show that there is a false suggestion or non-disclosure of a certain fact.

Recommended reading: Rights of legal heirs

Conclusion

Most of the people think that a succession certificate and legal heir certificate is the same thing. However, there is a vast difference between these two which has been explained in the article elaborately. Both legal heir certificate and succession certificate are its own benefits and importance to get the deceased person’s property and assets. Mostly, these days, people located in urban areas do leave a Will before there death. But in rural areas, succession and legal heir certificate is required to proof that rightful authority over the property of the deceased. More importantly, NRIs residing outside India may require succession and legal heir certificate in case of the death of their family member.

FAQs

 Yes. Illegitimate children that are born form a man and a woman out of wedlock or they are not married will be considered as legal heirs.

 A succession certificate holder can sell the deceased’s property. However, a legal heir certificate holder can sell the property of the deceased person only after taking written consent from all the legal heirs of the deceased in the form of NOC, i.e. No Objection Certificate.

 A succession certificate cannot be granted for immovable property. According to the provisions of the Indian Succession Act, a succession certificate refers to a document which provides the holder of the certificate to receive or pay the securities and debts owned by the deceased on his behalf.

 

Yes, a legal heir certificate can be applied online. You can fill out the application form on the e-portal of a district of the relevant jurisdiction and attach all the required documents. Apart from that, the fees must be paid online while submission of the application forms. When the certificate is ready, it can be downloaded from the e-portal itself.

 Yes, it can be challenged. Once the application for succession certificate is filed in the Court, the court will issue notices to all the relatives and legal heirs of the deceased asking if anyone have any objection regarding the grant of the succession certificate to the applicant.

 To get a succession certificate, a petition must be prepared and filed in the relevant district court as per the jurisdiction. The relevant jurisdiction will be the ordinary residence of the deceased where he was residing at the time of death.

 The process to get a succession certificate may take 5 to 7 months. At least 15 to 30 days are required to issue a legal heir certificate.

 Yes. Both married and unmarried daughters will be considered legal heirs. They will have the same rights as that of a son according to the amendments made in the Hindu Succession Act in the year 2005.

 Yes. If the second wife of the deceased is married legally under the provisions of the Hindu Marriage Act, 1955, then she will be considered as the legal heir of the deceased Provided, the deceased first wife is dead, or his first marriage has been dissolved legally by passing an order of divorce. However, It is to be noted that the children from the first wife will also be termed as the deceased’s legal heir along with the wife the second wife’s children.

 Generally, the spouse, parents and children of the deceased’s person will be considered as the immediate legal heirs. However, if the deceased does not have any of the aforesaid legal heirs, then his or her grandchildren will be the legal heirs. In case, the deceased does not have grandchildren either, then the brothers or sisters of the deceased will be the legal heirs.

 A Succession Certificate is required when someone wants to inherit the property or assets after the death of an immediate family member under the provisions of the Hindu Succession Act or Indian Succession Act.

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