DIWAN ADVOCATES

Family and Inheritance Law Practice

Delhi, India

At Diwan Advocates, we advise families on intestate and testamentary succession, will drafting, probate and Letters of Administration, succession certificates, will challenges, family settlements, partition, and the tax and FEMA dimensions of inherited estates. We act for beneficiaries, executors, administrators, and families in dispute.

Which Law Applies

India has no single succession law. The applicable regime depends on the religion of the deceased (intestate) or the testator (testamentary).

▪       Hindus, Buddhists, Jains, Sikhs — Hindu Succession Act, 1956 (intestate); Indian Succession Act, 1925 (wills).

▪       Muslims — Muslim personal law (intestate); testamentary power limited to one-third of the estate.

▪       Christians, Parsis, Special Marriage Act — Indian Succession Act, 1925 for both intestate and testamentary succession.

Intestate Succession

Hindus

Class I heirs — widow, sons, daughters, mother — take simultaneously in equal shares. For a female Hindu, property passes first to her children and husband. The 2005 amendment gave daughters the same coparcenary rights in ancestral property as sons, from birth, regardless of whether their father was alive at the time. The Supreme Court in Vineeta Sharma v. Rakesh Sharma (2020) confirmed this definitively. The distinction between ancestral property (a coparcener holds a birthright share, claimable by partition at any time) and self-acquired property (passes on death to heirs under the statute) is critical and turns on the history of the property through the family.

Muslims

The Hanafi school applies to most Sunni Muslims; Ithna Ashari rules apply to Shia Muslims. Every heir’s share is prescribed by jurisprudence and cannot be altered by will for more than one-third of the estate without the consent of the other heirs after death.

Christians, Parsis, and Civil Marriage

Under the Indian Succession Act, a Christian dying intestate with a spouse and lineal descendants gives one-third to the spouse and two-thirds to the descendants. If there are no descendants, the spouse takes half. Parsi shares differ modestly.

Wills

A valid will under the Indian Succession Act must be in writing, signed by the testator, and attested by two witnesses who are neither beneficiaries nor spouses of beneficiaries. A will made by a person of unsound mind is void; one made under undue influence or fraud is voidable. Registration is not compulsory but is strongly advisable — it creates a public record, is difficult to suppress, and simplifies probate.

A will can dispose of all self-acquired property and, for Hindu testators, the undivided share in coparcenary property. It cannot defeat a spouse’s or child’s right to maintenance. It is ambulatory until death and should expressly revoke all earlier wills.

Probate, Letters of Administration, and Succession Certificates

Probate confirms a will’s validity and the executor’s authority. It is compulsory in Mumbai, Kolkata, and Chennai for immovable property; elsewhere optional but practically required by banks and registrars. An uncontested probate takes six to eighteen months; a contested one can take years.

Where there is no will, or no capable executor, Letters of Administration are issued to the closest legal heir, who then has equivalent powers. A succession certificate — faster and simpler than probate — entitles the holder to collect debts and securities and is commonly required for bank deposits, shares, and mutual funds where nominations are absent or inconsistent with the legal heirs.

Challenging a Will

Grounds for challenge: lack of testamentary capacity, undue influence, fraud, or defective execution. Undue influence is the most common ground, particularly in cases involving elderly testators, second marriages, and wills that exclude natural heirs. The burden of proof lies on the challenger. Key evidence includes medical records around the time of execution, witness testimony, and evidence of the beneficiary’s opportunity to exert influence. A challenge must be brought within twelve years of death. In probate proceedings, a caveat may be filed until probate is granted.

Partition and Family Settlements

Any co-owner of inherited property may sue for partition. The court divides in kind where practicable; otherwise it orders a sale and distribution of the proceeds. Since 2005, daughters are coparceners with an equal right to demand partition of HUF property. Where all legal heirs agree, a registered family settlement agreement achieves the same result without court proceedings and gives each party clear title. We draft and register family settlements and advise on the legal implications before commitment.

Succession Planning

A well-drafted, registered will is the foundation. Beyond it, the principal planning tools are: the Hindu Undivided Family (a distinct taxable entity with its own PAN, useful for holding assets and managing succession within a family); private trusts (which separate legal ownership from beneficial enjoyment, survive the founder’s death, and provide governance for business shareholdings); and shareholders or buy-sell agreements for family businesses funded by life insurance.

Nominations in bank accounts, insurance policies, and mutual funds are not testamentary dispositions. The nominee receives proceeds as trustee for the legal heirs, who may claim against the nominee under succession law. Families that rely on nominations to avoid disputes may find the legal heirs’ claims survive them. We advise on the interaction between nominations, wills, and succession rights.

NRI and Cross-Border Estates

An NRI inheriting Indian immovable property may hold and let it freely. On sale, capital gains tax and TDS apply in India; proceeds can be repatriated up to USD 1 million per year under FEMA, with RBI approval required above that limit. An Indian resident inheriting foreign assets must comply with FEMA — they may hold inherited foreign property for up to two years and must repatriate the income during that period. Where a deceased held assets in multiple countries, each jurisdiction’s succession law applies to assets within it; Indian and foreign proceedings must run in parallel. Foreign wills valid in the place of execution may be admitted to probate in India for Indian-situated assets under the Indian Succession Act.

Why Diwan Advocates

Legislative Reference

Inheritance matters carry both legal complexity and family weight.

Getting the succession right protects not only the assets but the relationships that matter most.

DIWAN ADVOCATES

Family and Inheritance Law Practice  —  Delhi, India