Nomination is not a WILL

Nomination-is-not-a-WILL

If you die intestate (without leaving a WILL document), The Natural law of succession will prevail

The Court in present case once again had to decide between Morality and Law and settled that law prevails. The matter before the court was in relation to Relinquishment of Succession Right when Heirs have separated themselves from Deceased for a long time. The Court had to decide whether Absence of the Will still attracts Hindu Succession Act when Heirs had distanced themselves from the life of Deceased for more than 35 years. The situation became more complicated since deceased considered someone else as her nominee.

In the above-mentioned case, the facts are as follows:

  • A woman was living separately from her Husband and Daughter from past 35 Years and died Intestate.
  • From 35 years, the deceased was living with her sister.
  • Deceased was a Central Government Employee and has selected her sister as her nominee.
  • A succession Certificate issued in favor of Husband and Daughter of Deceased.
  • Sister of Deceased appealed against the above order on the ground that Nomination marked her as the owner.
  • Court relying on settled position of Nomination not amounting to Will stated that in absence of Will irrespective of relationship between deceased and heirs, the property still delves into legal heirs as per Hindu Succession Act in case of Intestate Deaths.

The court in this matter settled the following points

  • Nomination does not itself amounts to a Will or marks nominee as an owner.
  • Irrespective of the relation between Parties, provisions of Hindu Succession Act prevails in absence of Will.

Conclusion

The court in its opinion stated that the prevalence of law since distance does not amounts to Breakage of relationship and can even be there because of various other reasons as Employment. Moreover Nomination in Official Records sometime is done as a token of affection and love rather than with the purpose of making someone as a legal heir.

Read Full Judgement

Difference between Succession Certificate and Letter of Administration

Succession Certificate and Letter of Administration

The right paper work goes a long way in getting your money to those you love when you are no more to help them out. When you approach a financial institution, bank, Mutual Fund AMC, Demat account, PPF etc. to inherit, they may ask for documents like Succession Certificate or Letter of Administration or Probated copy of the Will to ascertain that you are the legal heir. This may even happen when you have a valid will.

Succession Certificate

In the absence of a will, if there is no survivor amongst the account holders and a no nomination had been done by the holder(s) earlier, a Succession Certificate is to be the primary document through which the heirs can stake a claim to the assets of a deceased relative.  A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. 

  • It establishes the authenticity of the heirs and give them the authority to inherit debts, securities and other assets that the deceased may have left behind.
  • The beneficiary has to approach the district or the high court within whose jurisdiction, i.e. legal territory, the assets fall (where the properties of your deceased relative are situated) and file a petition for a succession certificate.
  • The court, after examining the petition, issues a notice to all those concerned. It also issues a notice in a newspaper and specifies a time frame (usually one-and-a-half months) within which anyone who has objections may raise them. If no one contests the notice and the court is satisfied, it passes an order to issue a succession certificate to the petitioner.
  • Once you have the certificate, you are authenticated to distribute the assets to the legal heirs as per the succession laws.
  •  A Succession Certificate is not granted in cases where obtaining a Probate of Letter of Administration is necessary such as when there is a valid will.

Letter of Administration

Letter of Administration is issued by a competent authority (court) and appoints the Administrator to dispose of the property of a person. It is required when:

  • Testator has failed to appoint an executor under a Will OR
  • Where the executor appointed under a Will refuses to act  OR
  • Where executor has died before or after proving the Will but before administration of the estate.

A Letter of Administration can be granted after 14 clear days from the date of death of an intestate.

For obtaining a letter of administration the beneficiary has to apply to the court. The court on receiving satisfactory proof of valid execution of the will issues letter of administration to the beneficiary. The application for letter of administration has to contain the following details:

  • The time of the testator’s death
  • That the writing annexed in his last will and testament
  • That it was duly executed
  • The amount of assets which are likely to come to the petitioner’s hands, and
  • The petitioner is the executor named in the will

A Letter of Administration may be granted to one or several people who may apply to the Court. If no one applies, it may be granted to a creditor of the deceased. A Letter of Administration cannot be granted to a minor or a person of unsound mind.

The Value of a Succession Certificate

value succession certificate

Black Money, Benami Property, and Corruption are issues which are plague India, and the present Government is doing everything in its power to improve the country’s position. The steps taken by the government are eminent and effective. These steps might appear uncomfortable to those who have been used to defying the rules of the land, but they seek to build a more transparent, regulated and clean atmosphere in the country. In such an environment it is best to be prepared for all kinds of future situations especially about the matters related to property or various assets of a person.

When it comes to individual’s property or asset, he/she should try to be prepared for future – which is true in the case of NRIs. He/she can prepare a will in advance or appoint a nominee in all financial accounts like fixed deposits, stocks, saving accounts or mutual funds, etc., or can even file nominee for the property ownership.

But what happens when the person dies without preparing a Will? What steps can an heir take to obtain what is rightfully his? These situations raise a need for a solution which can help in claiming everything that belongs to the heir of the deceased.

In such a case where an individual dies without leaving a will (intestate), the legal heirs of the deceased person can apply in the court for the issuance of ‘Succession Certificate.’

Succession Certificate is a certificate granted to the legal heirs of the deceased person by the court so that they can claim the movable or immovable property along with the debts left behind by the deceased.

The issuance of such certificate is governed by The Indian Succession Act 1925. This certificate authorizes the heirs to get assets or securities transferred in their names. Along with the assets, the successor has to take responsibility and liability for clearing any debts or security attached to the property.

To obtain the certificate, the successor has to file a petition in the court. The petition should be filed with the competent jurisdiction where the property of the deceased person is located, or the dead person resided. In the petition the particular petitioner has to specify:-

  • His/ her name
  • The time, date and place of death
  • Relationship with the deceased person
  • Names of all heirs of the deceased person and attach the death certificate of the same.

After filing the petition with the court, a notice is issued in the newspaper. The notice specifies the period in which if any person has any objection he/she can do so if there is none the court issues the Succession Certificate to the petitioner.

It commonly takes 6 – 8 months from the date of filing the petition to obtain the Succession Certificate. The High Court and the District Court both have jurisdiction in the case of issuance of the certificate.

To claim what is rightfully yours is not wrong but sometimes it’s difficult to do so. Many times an NRI citizen who knows all the details of the property that in a way belongs to him/her finds himself/herself in a position where due to the lack of Will, claiming the same property becomes difficult.

In such a case if the NRI takes proper advice and consults with the appropriate property expert lawyers before taking a major step, claiming what is rightfully his/hers becomes easy. Prevention is better than cure!