Legal heir certificate is issued after the death of a family member2 min read . Updated: 30 Dec 2020, 07:07 AM IST
Execution of a will in favour of one legal heir, to the exclusion of another legal heir, does not invalidate it
My spouse and I own movable and immovable assets individually. We want all the properties to be equally divided among our two sons. Should we apply for legal heir certificates? How do we go about it?
Please note that a legal heir certificate is a “post-demise document"(it is obtained by family members upon the demise of the individual, and not during their lifetime). Your intention appears to be to bequeath assets equally among your sons. A legal heir certificate will not serve this purpose as the certificate does not confer title to the estate or assets of a deceased. It is limited in its scope (it is merely used to help transfer things like the telephone and electricity connection, filing of income tax returns and so on).
Each of you should execute your own independent wills, setting out your respective bequests. For a complete, legal transfer of ownership in assets (movable or immovable) after your lifetime, the execution of a (valid) will is a must.
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Given that your estate also includes immovable properties, your will may be subject to probate (depending on the location where you execute the will or where these properties are located). The recommended procedure would be to prepare your respective wills (in consultation with a counsel) clearly setting out your intention. Upon your demise, your children may subsequently have to obtain a grant of probate (if applicable) or a succession certificate from the relevant court of law.
I inherited an immovable property which was built by my grandfather and registered in my grandmother’s name. She passed it to my father, then to my mother and finally me. I have two sons (one adult and the other minor). Can I will this property to my wife and exclude my sons?
On the basis of the facts provided by you, the immovable property will be classified as self-acquired. Further, if each of you (your father, your mother and yourself) were named as legatees (to the property) in that order, it may be construed that your grandmother created lifetime interests in favour of your father, followed by your mother. If this is the case, you would be deemed to be the absolute legatee of the self-acquired immovable property. If so, you are at liberty to dispose of the property in any manner as you deem fit (assuming the property has been mutated completely in your favour), including bequeathing it solely to your wife.
Execution of a will in favour of one legal heir, to the exclusion of another legal heir, does not invalidate it. But you should be mindful of any potential challenges from your sons at the time of probate (if applicable), in case they feel that the property should have come to them.
However, if the wording of your grandmother’s will is such that each of you—your father, your mother and yourself—received an equal interest in the immovable property, your ability to bequeath the entire interest in the immovable property would depend on whether your parents subsequently bequeathed their share in the property solely to you. It would be important that you consult a legal counsel, as the specific wording of your grandmother’s will on this point will be crucial to determine succession.
Rishabh Shroff is partner, Cyril Amarchand Mangaldas. Queries and views at firstname.lastname@example.org