What is a Succession Certificate? Where to Apply and how to get it? Documents Required
What is a Succession Certificate? Where to Apply and how to get it? Documents Required

 

What is a Succession Certificate?

On the demise of a person, it is expected that his estate will be distributed among the surviving family members. The mode of distribution of the estate of the deceased person is dependent on the status of his estate at the time of death.

Where a person died without making a Will stating how his estate will be distributed on his demise, it is said that the deceased died intestate and his estate has fallen to intestacy. Even where the deceased had made a Will but subsequently acquired more estates which were not included in the will, the properties acquired after the making of the will shall fall to intestacy.

Unlike where the deceased made a Will, his beneficiaries shall derive their authority to administer the estate from the Will or the Executors shall vest the property on the beneficiaries. In the case of intestacy, the beneficiaries and the dependents of the deceased must obtain a Succession Certificate before they are can meddle with the estate of the deceased.

A Succession Certificate is the sole proof of entitlement in the estate of a deceased person. It is the only way to establish that the holder of the Succession Certificate is the proper heir of the deceased who died intestate.

The presentation of the Succession Certificate is mandatory for an heir to lay claim to the estate of the deceased within the formal sector like the Share Certificate, Debenture Certificate, and the Bank Account of the deceased.

In some common law jurisdiction, Succession Certificate is similar to Letters of Administration which may be granted to the heirs of deceased who died intestate or it may be granted with a Will annexed where some parts of the estates were not covered under the Will.

In addition to the above-rendered background and definition of the topic at hand, for easier understanding of the concept, Succession Certificate will be examined under the following headings:

  1. Legality of a Succession Certificate
  2. Status and Relevance of a Succession Certificate
  3. Where to apply to get a Succession Certificate
  4. The procedure of procuring Succession Certificate and the documents which must be tendered in the process
  5. The validity of the Succession Certificate

Legality of a Succession Certificate-

For a given concept or principle to be valid and binding on all persons and authorities in India, such concept or principle must be known to law. The law that validates the entire use and procurement of Succession certificate is the Succession Act of India enacted in 1925.

 

Status and relevance of a Succession Certificate-

Where a person is the bona fide holder of a Succession Certificate, such person:

  1. Has the entire title and unexpired interest of the deceased over his property and assets reposed in him unless a superior claim is advanced in a contest of such title.
  2. Has the unfettered power to in the name of the deceased collect debts and securities due to the deceased or payable in his name, the doctrine of privity of the contract shall not operate to vitiate this power unless where the claim pertains to a personal right of the deceased which does not outlive the deceased.
  3. While enjoying the rights and privileges of the deceased is by the said Succession certificate is vested with the debts and other existing liabilities of the deceased person.

Where to Apply to get a Succession Certificate?

An application for the issuance of a succession certificate is to be made in the Civil Court in India while in some jurisdictions such an application shall be made to the Probate Registrar of the High Court of Jurisdiction at the first instance before proceeding to the court.

A civil court can be clothed with the powers to order for the grant of a Succession Certificate in India. Can be a District Court or a High Court of Justice depending on the value and location of the property and assets.

For the purpose of jurisdiction, it is the district or the high court in the jurisdiction where the deceased resided as opposed to where the heir-applicant resides that has the powers to hear and grant the petition for grant of succession certificate.

Alternatively, such application or petition for the grant of succession certificate where the properties of the deceased are situated. This is in line with the doctrine of lex domicile and lex situs which guides the administration of the estate of deceased person.

 

THE PROCEDURE OF GETTING A SUCCESSION CERTIFICATE-

As encapsulated in the provisions of Section 372 of the Succession Act of India, 1925, an application which must be by way of the petition shall be made to a District Court Judge or the High Court Judge.

The petition must be signed by the Petitioner which is the person praying the Court to grant a Succession Certificate in his favour or someone on his behalf may sign (mostly, a Legal Practitioner acting on his behalf).

The petition must be presented in a manner which substantially complies with the Code of Civil Procedure, 1908. In addition, the petition should contain the following:

  1. The petition must state the fact that the deceased is dead and details of the death including time and the cause of death must be particularly stated which shall be as contained in the death certificate attached to the petition;
  2. The last known address of residence of the deceased must be stated;
  3. The details or extent of properties of the deceased at the time of death within the jurisdiction of the Judge must be stated;
  4. Names and addresses of family or other relatives must be stated in the application;
  5. The petitioner must state the circumstance under which his rights over the estate of the deceased emanated from;
  6. It must be stated by the heir-petitioner that there is no encumbrance which will affect the grant of the succession certificate;
  7. The debts and securities in respect of which the certificate is applied for.

There are documents which must be presented or annexed with the petition for grant of succession certificate by an heir-applicant, the documents are:

  1. Death certificate of the deceased person.
  2. No objection or certificate of consent (from other legal heirs).

On the presentation of this petition by the heir-applicant, the Court will cause a notice to be issued and served on all legal heirs in order to enable them file objections if any to the grant of the succession certificate on the heir-applicant.

The court will also issue a notice which shall be published in the newspapers to the effect that the specified period of raising an objection is 45 days.

In the absence of any objection from the heirs served with notice at the instance of the Court, the petition shall be upheld and a Succession Certificate shall be issued on the heir-applicant. If there are objections, the court will hear and decide the same.

The court after granting a Succession Certificate will also levy a fee for the issuance of the certificate. Court fees are payable in the form of judicial stamp papers after which, the court shall issue the succession certificate.

The holder of the Succession Certificate shall then proceed to claim every right and benefit from the estate of the deceased in accordance with the Succession Act of 1925.

A Succession Certificate shall be refused in a situation where obtaining a grant of Probate is necessary. Also, any false declaration made in the petition by the heir-applicant may ground a conviction after investigation and trial in a court of competent jurisdiction for an offence under the India Penal Code.

 

THE VALIDITY OF THE SUCCESSION CERTIFICATE

A Succession Certificate is valid and subsisting throughout India as enshrined in Section 380 of The Indian Succession Act, 1925 i.e every person and authority in India accords recognition to it.

In the instance where, a certificate is granted to a person who resides in a foreign country, by an Indian representative, of such foreign country, the certificate will be valid only if duly stamped and certified. See generally, Sections 380, 381 and 382 of the Succession Act of India, 1925.

The grant and issuance of Succession Certificate are obviously a time and energy-sapping legal adventure which usually takes time but where the petition is not contested, the court is obliged in the absence of any obvious defect in the legal processes filed, to issue a Succession Certificate with seven (7) months of such application.

Having earlier distinguished the concept of a Succession Certificate from a grant of probate, it is pertinent to also state that a Succession Certificate is also different from a  Legal Heirship Certificate.

A Legal Heirship Certificate is used to identify and ascertain the living heirs of deceased whether the deceased died intestate is immaterial, Succession Certificate, on the other hand, is issued to establish the authenticity and their authority to inherit debts, securities and other assets that the deceased may have left behind.

Again, the Succession Certificate where granted can extend to the movable and immovable properties of a deceased who died intestate (including his rights, patents, and other intellectual property rights).

A mere look at the status of a Succession Certificate under the Succession Act of 1925, one may erroneously conclude that upon issuance of same it remains irrevocable and cannot be contested again.

This unfortunately is not always the case as the order of the court granting the issuance of a succession certificate on an heir-applicant being a judgment of the court where made in the absence of jurisdiction or by fraud can be set aside at the instance of the aggrieved party by making a proper application to the court to set same aside. The application may further be in the exercise of the right of appeal against the order.

Furthermore, the draftsman of the Succession Act of 1925 must have envisaged the fallibility or the injustice which may be caused by seeing a finality in the order of the court granting a succession certificate by restating that an heir-applicant for a succession certificate will be prosecuted under the India Penal Code.

It is then asked what is the fate for an order granted by virtue of a false information declared by a desperate heir-applicant?

The answer obviously lies in the question because the court without a second thought shall not hesitate to stifle out the life out of an order which was made pursuant to a false or misleading declaration by an heir-applicant in his petition.

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