Lawwatch

Law Relating to Succession & Other Certificates

Legal Heirship Certificate, Succession Certificate and Letters of
Administration have close relation. They serve a common purpose – they
are being used for devolution of some rights on the property of a person
died intestate, to their legal descendants. These certificates, because
of their names rather than their contents, create some confusion in the
minds of not only ordinary people but some learned lawyers also. The
purpose of this write up is to bring in some clarity in regard to the
basic nature of those certificates governing inheritance and succession.

The bank accounts, property, personal assets and investments that a
person leaves behind when he dies are altogether called ‘estate’. When
there is a contest in the nature of devolution of the ‘estate’ to the
descendants, it is necessary to obtain legal authority from the court.
Normally, Will is the legal instrument by which a person makes a plan
for disposition of his property after his death. When the deceased
person leaves no Will or his Will cannot be executed due to some
reasons, there comes the role of such a certificate for disposing of his
‘estate’.

The legal term ‘inheritance’ refers to the right to succeed to the
‘estate’ as legal descendants whereas the term ‘succession’ refers to
the process by which the legal heirs acquire the property of the
deceased. ‘Heir’ on the other hand is a descendant who inherits a share
of the ‘estate’.

Legal Heirship Certificate

Legal Heirship Certificate is issued by the revenue officers of the
executive government - in Kerala it is Tahsildar - based on the enquiry
made by his junior official - Village Officer. Prescribed application
form is there to apply for the certificate.

The certificate establishes the relationship of the heirs to the
deceased. It is being used for claims relating to pension, gratuity and
such other service benefits when the deceased had already not selected a
nominee. It is not a conclusive proof for determining the legitimate
heirs to any disputed estate. When there is a dispute, the only course
left for settling the matter is to file a suit in the civil court and
get its decision.

Succession Certificate

A Succession Certificate on the other hand is granted exclusively in
respect of “debts and securities” such as Provident Fund, Bank Deposit,
Insurance, shares etc to which the deceased was entitled to, as per
section 370 read with Section 214 of the Indian Succession Act. The
certificate nevertheless declares who the successors of the property are
and the ratio in which they would get their shares, unlike many people
think. The certificate is issued by the District Court or High Court –
both have concurrent jurisdiction to hear and decide a petition. The
certificate is issued on miscellaneous proceedings under section 141 of
the CPC. The court follows summary trial in proceedings. The contesting
parties cannot raise complex contentions in regard to the title of the
property. When there are rival contentions, the contentions have to be
settled by a suit in the civil court.

Anyone who has prima facie a beneficial interest can apply for the
certificate. A petition for certificate should contain the relationship
of petitioner with the deceased. The time, date, place of death details
should also be mentioned in it and the death certificate and any other
documents as the court may require should be attached. The petition
should specify each debt and security in detail. The details of all
heirs have to be included in the petition. The petition should be a
signed and verified one by the plaintiff. It should set forth the
following facts:

  • The time of the death of the deceased

  • Ordinary residence of the deceased at the time of his death

  • The family /other near relatives of the deceased and their residence

  • The absence of any impediment under any law to the grant of the
    certificate

  • The debt and securities in respect of which the certificate is
    applied for

A newspaper notice specifying a time frame - usually one and a half
month - within which anyone can file objections also, needs to be
issued. It roughly takes around 6 – 8 months to receive a Succession
Certificate.

That the question that whether a debt due to the deceased is really due
or not is not a matter, which can be decided in an application for the
certificate. The right of the applicant to the certificate and the
question of the existence or non- existence of the debts/securities in
respect of the application are the things the court ascertains. If a
Will of the deceased is found to have been in existence during the
proceedings the court can dismiss the application for certificate. If
the court is satisfied with the facts in the application it will issue a
succession certificate specifying the debts and securities.

The court can ask the applicant of the certificate to furnish security
in the form set forth in Schedule VIII of the Indian Succession Act

  1. The certificate empowers the grantee a title to recover the debt
    due to the deceased and authority to sue for debt recovery. The debtor
    can pay the debt amount to the certificate holder to get a full
    discharge. The certificate grants the applicant only the ‘right to
    collect the debt’ but not the ‘right to the debt’. A certificate already
    issued can be revoked when the proceedings were found defective or due
    to other reasons. Appeal can be filed about an order on the certificate
    in the high court but no second appeal is provided for. The certificate,
    in addition, clothes the parties who are paying the debt to the legatees
    with due protection. The certificate makes its holder equivalent to a
    trustee. The District court declares only the holder’s ‘right to the
    certificate’ but not the ‘right to the estate’.

Probate of the Will and Letters of Administration

The Probate of the Will and Letters of Administration are issued
under the Indian Succession Act 1925. In Kerala, the Indian Succession
Rules 1968 issued by the Kerala High Court provides for both. A Probate
is not required now in Kerala but in some other parts of the country a
Probate is still required..

The above rules set forth the forms and procedures applicable in Kerala
for obtaining contentious or non-contentious proceedings to be followed
for obtaining probate and letters of administration. Either a legal heir
or a creditor can apply for grant of probate or letters of
administration. If the application is a contested one it will turn into
a civil suit to be proceeded as per the Civil Procedure Code. The
application for probate and letters of administration should set forth
all the property and credit which the deceased possessed or entitled to,
at the time of his death or were likely to come to his hands.

Probate and Letters of Administration are legal instruments to
distribute the estate of the deceased to the legitimate descendants.
They authorize the administrator to close bank accounts, cash in
investments and sell or transfer property. However, which one of these
two instruments is appropriate in each case depends on whether an
individual is died with or without a Will, and who is applying for it.

Probate means a certificate that declares the genuinely of the Will.
It is issued by the civil court. In Kerala state, now a Probate is not
required eventhough the rules explained here refer to that of the State.
But in some other parts of the country a Probate of the Will is still
required.

A Probate is issued only to the Executor named in the Will or the
legatee. When making a Will, one should appoint its Executor. This
should be someone the author of the Will reposed trust, and who has the
capability of managing a potentially complex process of executing the
Will that may take up to one year to complete. The Executor has the
legal power to execute the Will after the author’s death, and can
transfer the assets to the beneficiaries named in the Will. Some
financial institutions prefer the Executor to obtain a Probate from the
appropriate Court before releasing the funds. The Probate is legal
confirmation from the Court that the Will is valid. Once the Probate is
issued, it means that the Will has been officially registered and the
Executor named in the Will is the one with the authority to deal with
the estate.

The Letters of Administration is an authority issued by a competent
court to a right person to administer the distribution of the estate
belonged to the deceased in the right proportion to the rightful
claimant. It is issued when the Will of the deceased has no executors,
no action is taken by the executor or the death of the executor occurred
before administering the will. When it is necessary to have the letters
of administration a Succession Certificate cannot be issued in lieu of
it.

The Letters of Administration is similar to Probate, but is issued to
the next of kin of the deceased. If the deceased has not made a Will and
thereby not appointed a specific person as the Executor of his estate,
his family would have to apply to the court for Letters of
Administration to confirm their entitlement to manage the estate. If the
family members cannot agree which of them would be the best person to
deal with the estate and there is dispute, it is necessary for the
involvement of the competent civil court to settle it in a civil suit.
The Schedule VII of Indian Succession Act, 1925, contains the form for
grant of letters of administration. The Rules mentioned above carry the
prescribed application form. An application can be filed after 14 days
of death. If no beneficiary applies for the certificate, the court can
grant it to the creditor of the deceased.

Letters of Administration might also be issued where there is a valid
Will, but the Executor named in the Will is not applying for a Probate.
This could be because the person does not want to act as the executor,
or is no longer capable of doing so, or perhaps he might have already
died. In such a case, it is common for one of the main beneficiaries in
the Will to apply for letters of administration instead. To avoid such a
situation, one can include a substitute executor in the Will, who can
step in when the main executor is incapable of managing the estate. The
court normally levies around 3% of value of asset as fee. When the
certificate is issued the grantee has the authority to distribute assets
as per the concerned succession law. The grantee will also get the title
to recover the debt due by deceased and any payment of debt made to
grantee will be a legally valid discharge of debt.

Conclusion

Intestate succession is a quite confusing issue in Kerala. The reason is
that there have been different sets of laws for three erstwhile areas –
Travancore, Cochin and Malabar areas – subsumed into the state and
different sets of laws for different religious sects – Hindu, Christian
and Muslim - in the state with so many acts and amendments, some of
which become obsolete but some others still remain in force. The Hindus
are governed by Hindu Succession Act 1956, the Christians by Indian
Succession Act 1925 and the Muslims by religious laws such as Hanafi
(Sunni) and Shia systems of inheritance based on Quoran.

The certificates regarding debts, liabilities and securities of the
deceased get special importance in inheritance and succession to the
descendents because the estate of the deceased that needs to be devolved
is arrived at only after discharging his debts, liabilities and other
expenses including funeral expenses.