When a person dies intestate (without leaving a will), the transfer of certain assets to the heirs of the deceased requires a legal heir certificate, and in a few States a probate, in order to establish their claim.
Mumbai-based lawyer Siddhartha Shah says “A number of other documents such as legal heir certificate may be procured, as an alternative to a succession certificate, for the purpose of establishing an inheritance or aiding in the transfer of assets from the deceased. It is comparatively easier to obtain it”.
Mr Shah explained “In some cases, a legal heir certificate may be used in the place of a succession certificate merely because family is able to obtain a legal heir certificate conveniently and quickly. Usually, families first apply for a legal heir certificate and in the event a legal heir certificate is not accepted by the relevant authority for some reason, then a succession certificate is applied for”.
A legal heir certificate is thus a crucial ‘post-demise’ document to establish the relationship between the deceased and legal heirs and who the legal heirs are, in order to claim certain assets. One legal heir can apply for the certificate but he/she has to include the names of all possible legal heirs in the prescribed application form.
A legal heir certificate establishes the relationship of the heirs to the deceased for claims relating to pension, provident fund, gratuity or other service benefits of central and state government departments, specifically when the deceased has not selected a nominee. Banks and private companies also accept such certificates for allowing transfer of deposits, balances, investments, shares, etc.
Mr Shah cautions that the applicant legal heir must truthfully mention all other legal heirs apart from him/her on the application form. Remember that you are signing the document. Mr Shah said “Do not leave out any legal heirs because it will tantamount to misrepresentation, manipulation and is a criminal offence and one could land up in jail. It will amount to perjury and you can be held liable for lying if the other legal heirs challenge the certificate later on or you are caught. Despite it being such a crucial document, misrepresentation and misuse often happens leading to long-drawn litigation”.
Mr Shah stressed that the legal heir certificate is revocable if someone later on objects that it should not be granted to you. It does not certify that you are the only legal heir of that deceased person or that you are entitled to all assets that have been left behind by the deceased person. For that you would need a succession certificate. Succession certificate is granted by a court of law after following the due process of issuing a public notice and inviting objections from the public at large as well as the other legal heirs of the deceased person. It is this succession certificate which grants the right to successors to claim all the movable assets of the deceased person”.
Mr Shah added “Legal heir certificate is not conclusive when it comes to determining the legitimate class of heirs of a deceased person under the laws of succession or the title of heirs to any disputed property that belonged to the deceased. In case of any disputes between the heirs of the deceased, the revenue officer cannot issue a legal heir certificate and is required to direct the heirs to approach a civil court for determination of the rightful heirs”.
Mr Shah further clarified “A legal heir certificate is issued to identify the living heirs of a deceased person whereas succession certificate is issued to establish the authenticity of the heirs and give them the authority to inherit debts, securities and other assets that the deceased may have left behind”.
The legal heir certificate names all the heirs of a deceased person, under the applicable law, after a proper enquiry. All eligible successors must possess this certificate to stake a claim over the deceased person’s property.
One needs the legal heir certificate for the following:
- Transfer of properties and assets of the demised person to his successors (such as transferring the car or telephone/ electricity connection)
- For insurance claims
- Sanction and processing family pension of the deceased employee.
- To receive dues such as provident fund, gratuity etc from the government or to salary arrears of the deceased (state or central government employee).
- To gain employment based on compassionate appointments
File tax returns on behalf of the deceased:
Legal heir certificate is also a must when one needs to file income tax returns on behalf of the deceased assessee (as a representative). As per Section 159 of the Income Tax Act, 1961, if an individual dies, then the legal representatives shall be liable to pay any sum which the deceased would have been liable to pay had the individual not died and were alive. A legal representative or legal heir is deemed to be an assessee (representing the deceased) and tax is payable on income/ earnings from 1st April to the date of death of the asset owner. However, the legal representative/ heir is not responsible to pay the income tax dues from his/her own pocket. Importantly, the legal heirs are liable only up to the extent of the assets that they inherit from the deceased asset owner.
Who can apply for a legal heir certificate:
As per Indian law, the following persons are considered legal heirs and can claim a legal heir certificate:
- Spouse of the deceased
- Children of the deceased (Son/ Daughter)
- Parents of the deceased
- Sibling(s) of the deceased
Procedure to obtain legal heir certificate
Once a death certificate is obtained from the municipal corporation, the legal heir can apply for the legal heir certificate to claim their right over the assets of the deceased person.
The legal heir certificate can be obtained by approaching the area/taluk Tehsildhar, or from the corporation/municipality office of the respective area, or from the district civil court. In Mumbai, you can contact concerned window, Mumbai City Collectorate, Old Custom House, Ground floor, Fort Mumbai-400001.
The main documents needed are -
1. Xerox copy of the first and last page of the ration card
2. Affidavit duly affirmed on stamp paper of Rs.20/-
3. Death certificate
4. Service record from the office of the deceased employee
The process of obtaining a legal heir certificate are stated below:
- The legitimate heir of the deceased person must visit the appropriate authority listed above and seek an application form for the legal heir certificate application. This requisite application must include the names of all the legal heirs, their relationship with the deceased and addresses of the family members. This has to be filled up signed and submitted.
- All the required documents including the death certificate of the departed person should be attached to the application.
- An affidavit on stamp paper or self declaration needs to be submitted along with the application.
- Revenue Inspector/administrative officer conducts an inspection and completes the enquiry. Authorities after receiving the application will check the attached documents and details.
- If all are in place, they will make entries in their registry and provide you a record number for reference.
- Tehsildar will assign the application for further processing to the Village Administrative Officer (VAO) and Mandal revenue officer (MRO) OR the authorities concerned. There will be a ground level verification and scrutiny of the documents submitted by the above authorities.
- Enquiry will take place for the verification by the local revenue officers as well as village administrative officials. Generally, a statement by the administrative/gov employee who is known to the dead person and his/her family will be registered in the application form. After the verification, the officials will submit their report in the prescribed form.
- Once the verification is over, these revenue officer and village administrative officials will submit their report in due form to the Tehsildar to decide and issue the certificate to the applicant with the names of all legal heirs of the deceased.
- After the enquiry is completed successfully, the authorized officer issues the legal heir certificate. Applicant will get the certificate after due verification.
After the due enquiry, based on the report presented by the revenue officer and village administrative officials the certificate will be issued by the competent authority in which names of all the legal heirs will be mentioned.
The process of obtaining a legal heir certificate generally takes 30 days. If there is an unnecessary delay in receiving this certificate or the concerned authorities fail to respond, you should then approach the Revenue Division Officer(RDO)/sub-collector or Tehsildar.
Documents required to apply for legal heir certificate
Here is the list of documents required:
- Death certificate of the deceased
- Identity proof and address proof of the applicant (legal heir)
- written / prescribed application form
- Proof of residence of deceased person (voter ID / driving licence/ bank pass book etc)
If spouse applies for certificate
- If the spouse survives, Aadhaar, marriage registration certificate or passport or Voter ID should be submitted
- Birth certificate or Transfer certificate of all Children
- Self declaration of the spouse indicating all other legal heirs (including mother-in-law if wife is the applicant)
If child applies if parent are deceased
- Death certificate of the parents
- Birth certificate / Aadhaar / passport / transfer certificate of the applicant and adhaar card of all possible heirs
In case a minor child applies when parents are deceased
- Death certificate of the parents
- Birth certificate / Aadhaar / passport / transfer certificate of the applicant and Aadhaar card of all possible heirs
- Guardianship order issued by the Honourable civil court to prove relationship to the heirs
If parents or sibling apply (in case unmarried children pass away)
- Death certificate of the deceased
- Birth certificate / Aadhaar / passport / transfer certificate of the deceased
- Self declaration of the parents / siblings
The applicant can opt for any of these: voter ID, Aadhar card, driving license, passport or any other government-issued identity card as the identity proof. Address proof of legal heir can be any valid identity proof or telephone/mobile bill, gas bill, bank passbook with the name and address of the legal heir. Date of birth proof of legal heir can be a birth certificate, school transfer/leaving certificate, PAN card, passport etc.
Difference between legal heir certificate and succession certificate
Many people get confused between legal heir certificate and succession certificate. Mr Shah pointed out that it is important to note that both legal heir certificate and succession certificate are not same. Both certificates are very different and serve different purposes. A succession certificate is issued by the civil court and there are separate procedures to obtain the same. Legal heir certificate is issued to build a relationship for claims related to pension, insurance, administrative/service advantages, retirement benefits of the state and central government offices, government works etc. and to get a government job on compassionate grounds. A succession certificate enables the legal heirs to transfer the property, shares, debentures, etc. of the deceased in their own name.
Major differences between these two certificates are as follows:
- Legal heir certificate usage is limited to certain matters such as claiming employee benefits of the deceased, insurance claims, property registration etc.
- A legal heir certificate is not accepted as conclusive proof under the law of succession in India.
- With respect to the settlement of any property which is disputed or under court litigation, a succession certificate is vital.
Note: This article intends to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.