What will happen if a man dies without leaving a testament?

My brother and I are staying in Kanpur and supporting our family business. We are both married and have kids. When our mother died, we faced several difficulties in transferring her assets to our father’s name. Recently, he was diagnosed with cancer but has not made a will. What will be the consequence if he doesn’t make a will?

—Name withheld on request

We assume that your father is a Hindu and his properties are self-earned/ self- created. Further, these properties are not ancestral in nature. Also, we assume that there is no right or interest of any other person in the property and that the same were held only by him.

We would like to point out if a male dies intestate, i.e. without making a will, then Hindu Succession Act, 1956, states “General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.”

The class I legal heirs (whoever is surviving) consists of mother, spouse, children, widow of predeceased son, etc. In case there is no will, then usually a succession certificate /legal heir certificate is acquired from the competent civil court.

Succession certificate is a document that gives the right to inherit the assets to the legal heirs of those who die intestate. On the other hand if one makes a will, one can clearly define and choose specific beneficiary for a specific asset, unlike the default succession law. In case your father does not make a will, then his assets will bequeath equally between you and your brother as per the Hindu Succession Act. Will formation is a straightforward process and can be concluded fairly quickly. We would suggest to have an open discussion with your father regarding the same since he would may want his assets to be bequeathed as per his wishes and not as per the standard practice law.

Neha Pathak is head of trust & estate planning, Motilal Oswal Private Wealth