In India inheritance is governed by two processes –
1. By Will
2. By Personal Law
Inheritance under a will
A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are managing the assets of the testator and providing for the transfer of the deceased’s property upon death.
If a father (testator) leaves behind a will, the property will be distributed among the brothers. An executor is appointed by the testator as distinct from a court-appointed administrator.
Inheritance according to personal law
In India the inheritance and the manner in which the property of the deceased person is to be distributed is determined by the law of succession, where there are no equivalent documents declaring the intention of such person or deceased person.
Under Muslim law
There is no concept of ancestral property or such rights by birth in Muslim law. Islam recognizes that a person can leave behind a will, but a will (unless the will is approved by all the heirs of the person leaving behind) is valid up to one-third of the deceased’s estate. As it is recognized, it is governed by the regular laws applicable to the Will in India.
• A Muslim wife cannot be evicted.
• Even if he has to share with other wives if he has more than one wife.
• The widow gets a certain share.
• Muslim law gives male heirs/sons twice the share of female/daughters.
Under Hindu law
Sections 8 and 9 of the Hindu Succession Act, 1956 govern the distribution of property after the death of a Hindu male. When a Hindu dies without a will, the property passes to the Class I heir who takes over the property with the exception of all other heirs. And if not class 1 then class 2 goes to the heir.
For example, if the father dies leaving behind his wife and four sons, each will inherit an equal share of his property, that is, each will receive one-fifth of the father’s property.
Legal process of distribution
Before claiming any property left by the deceased, it should be ensured that there is no debt outstanding. All heirs must first agree to devise a strategy to pay off the loan.
If the property is to be distributed among brothers as per the will left by their father, it is important to ensure that there is no ambiguity in the will and legal advice should be sought to reach any kind of settlement. Lack of clarity in the will can lead to serious legal complications at a later stage, which can be avoided by working in the right direction in the beginning.
Family Settlement Process – A family settlement is an agreement where family members mutually act out how property should be distributed among themselves. All the parties must be related to each other and claim a share of the disputed property.
Family settlement is a settlement process where a third person, usually a lawyer or a senior family member, helps the family reach a mutually acceptable settlement of a property dispute.