What is the legal formality to be carried out after a person is dead?

death

“For life and death are one, as the river and sea are one” said Khalil Gibran. Death is inevitable as it is the only thing born along with the birth of a person. The death of a loved one is agonizing and it will take some time, even years, to relieve oneself of the pain. There are certain legal formalities to be carried out after the death of a person. As the legal representative or the legal heir, it is the duty of such person to carry out the legal formalities. This submission discusses about various legal formalities ranging from obtaining a death certificate to the management of assets and liabilities.

Death Certificate:

In India, a death certificate is the primary document issued by the Government that shows the termination of a person’s existence. It contains the date, time, place and reason of death and also mentions the legal heirs of the deceased. It also enables relieving the individual from social, legal and official obligations, to enable settlement of property inheritance, and to authorize the family to collect insurance and other benefits.

Legal framework:

In India, it is mandatory under the law (as per the Registration of Births & Deaths Act, 1969) to register every death with the concerned State/UT Government. The Government accordingly has provided for a well-defined system for registration of Death, with the Registrar General, India, at the centre and the Chief Registrars in States, running through district registrars to the village and town registrars at the periphery.[i] The proforma for online application of death certificate is available at http://crsorgi.gov.in/web/uploads/download/Procedure_for_B_&_D_Registration.pdf

Time period within which the death has to be registered

The process to be followed differs from State to State since every state has its own rule making power conferred on it by the statute.[ii] Hence, it is essential to verify the relevant requirements before commencing the process. The application form in which you are required to apply is usually available with the area’s local body authorities, or with the Registrar who maintains the Register of Deaths. You might also need to submit proof of birth of the deceased, an affidavit specifying the date and time of death, a copy of the ration card, and the required fee in the form of court fee stamps.[iii] The following is the generalized time period within which the death certificate has to be applied for:

  • Within 21 days of the occurrence of death – The person duty bound as per the Act should inform the Registrar having jurisdiction, apply for a death certificate and obtain without any fee. The Registrar is duty bound to offer the certificate without any fee or reward.
  • Later than 21 days, however within 30 days – The person duty bound as per the Act may inform the Registrar within 30 days of the occurrence of death and obtain the death certificate by paying a nominal late fee of Rs.2/-.
  • Later than 30 days, however within one year – The written permission of the Registrar and an affidavit from a notary public has to be obtained before obtaining the death certificate. The late fee is Rs.5/-.
  • Later than one year – It shall be registered only on an order of a Magistrate of the first class or a Presidency Magistrate and on payment of late fees of Rs.10/-.[iv]

Who is duty bound, as per the Act, to inform the Registrar about the death?

S.8 of the Registration of Births and Deaths Act, 1969 lays down the following:

1. When death has taken place in a house: Head of the house or nearest relative of the head of the House or oldest person in the family can register the death.

2. When death took place in a Hospital/Sub-Divisional Hospital/Medical College Hospital/Referral Hospital: Deputy Superintendent of the hospitals and officers In-charge of referral hospital and PHCs.

3. In Maternity Home and other like Institution: Medical officer In-charge.

4. In a Jail: Jail In-charge.

5. In a Dharmshala, Boarding House etc: Person In-charge.

6. In a Moving Vehicle: Person In-charge of the Vehicle.

7. Found deserted in a public place: Headman of the Village/In-charge of the local police station.

S.9 gives a special provision to deaths in plantations, which is to be registered by the superintendent of the plantation.

Documentary Requirements for obtaining a death certificate

The following are the documentary requirements for various application processes:[v]

1. Within 21 days of the occurrence of death – Declaration by close relative/family member in prescribed proforma, Information in prescribed proforma, Address Proof of deceased – copy of any one of the self attested document (Voter ID card, electricity/gas/water/ telephone bill, passport, valid ration card, Aadhaar card, running bank account etc.)

2. Later than 21 days but within 30 days of the occurrence of death – Delayed Fee in addition to the details provided Supra.

3. Later than 30 days but within 1 year of the occurrence of death – Information in prescribed proforma (i.e. Form2); Non Availability Certificate (Form 10); Delayed Fees; Affidavit/Declaration by informant; Permission from the competent authority.

4. Later than one year – Information in prescribed proforma (i.e. Form 2); Non Availability Certificate (Form 10); Delayed Fees; Affidavit/Declaration by informant; Order from first class magistrate.

Legal Formality to be complied with if the deceased had written a will

Will is a translation of the Latin word “Voluntas”, which was a term used in the text of Roman Law to express the intention of a testator. It is of significance that the abstract term has now come to mean that document in which the intention is contained.[vi] A will is otherwise known as a testament. The word ‘testament; is derived from the Latin term “Testatio mentis” which ‘testifies the determination of the mind’. As per S.2(h) of the Indian Succession Act which governs testamentary succession, ‘will’ means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

The testator might have named someone as the executor of the will who will carry on the legal formalities pertaining to the will. If no one is named in the will, the Court appoints an administrator. An application for probate or for letters of administration is to be filed u/S.276 of the Act. Probate is to be granted only if an executor is appointed under the Will. Otherwise, the request should be one for the grant of letters of administration.[vii]

After the application has been made, the court having competent jurisdiction takes up the matter and issues notice to the nearest heirs and kin of the deceased. A consent affidavit may be filed by the relatives if they agree with the contents and mode of execution and attestation of the will. If not, a Testamentary Original Suit is filed. Sometimes, a Caveat against the grant of probate may also be lodged by the kindred. In such cases, the caveat proceedings are completed. If it is found that granting the probate would do justice to the intention of the testator, then the probate is granted under the seal of the competent court. A probate shall be granted only after the expiry of seven days from the date of death of the testator.[viii]

Legal Formality to be complied with if the deceased had dies intestate:

When persons die intestate, depending on their religion, the personal laws will govern the succession to their properties. In such cases, it is essential to establish the legal heirs or to establish the representative title of a person who is entitled to claim as a result of succession to another. This can be done either by obtaining a legal heir certificate or by obtaining a succession certificate.

The essential difference between a legal heir certificate and succession certificate is that a legal heir certificate is issued to identify the living heirs of the deceased whereas succession certificate establishes the legitimacy of the heirs and gives them the power to inherit shares, securities, debts, and other assets that the deceased may have left behind. Also, the scope of a legal heir certificate is limited and it is not conclusive proof under the law of succession in India. For any property lis pendens it is imperative to have a succession certificate.

Process to obtain Legal Heir Certificate

The Indian Succession Act, 1925 does not lay down any procedure for a legal heir certificate. It may be applied for by the spouse or children or parents or siblings of the deceased. It is essential for transfer of property, making insurance claims, obtaining employment on compassionate grounds, claiming salary dues, pension, provident fund etc. The revenue authorities such as taluk tahsildhar having jurisdiction issue the legal heir certificate. The process usually takes 30 days or so.

The documents required are:

  • Signed application form
  • Identity/Address proof of the applicant
  • Death certificate of the deceased
  • Date of Birth proof of all legal heirs
  • A self-undertaking affidavit
  • Address proof of the deceased

Once the application is submitted with the other requirements, the revenue authority conducts an enquiry into the whereabouts. When the revenue authority satisfactorily completes the enquiry, the authorized officer issues the legal heir certificate.

In case of any differences between the heirs of the deceased, the revenue officer cannot issue a legal heir certificate and is obligated to direct the heirs to approach a civil court for the determination of the rightful heirs.

Process to obtain Succession Certificate:

To obtain succession certificate, a petition to the District Judge within whose jurisdiction the deceased person ordinarily resided at the time of his or her death or, if at that time he or she had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found.[ix]

A petition for succession certificate must contain the following particulars:

  • Time of death of the deceased;
  • Residence or details of properties of the deceased at the time of death within which Judge the jurisdiction falls under;
  • Details of family or other near relatives;
  • The rights of the petitioner;
  • Absence of any impediment to the grant of certificate.[x]

S.373 of the Indian Succession Act, 1925 lays down the procedure to be followed by the District Judge when an application for Succession Certificate is made. On making the petition, if the District Judge is satisfied as to the ground of making the petition, can grant an opportunity of hearing to persons who, in his/her opinion, should be heard. After hearing all parties, the Judge can decide the right of the petitioner to be granted the succession certificate. The Judge would then pass an order for grant of certificate specifying the debts and securities set forth in the application empowering the person to receive interest or dividend or to negotiate or transfer or do both.[xi]

The effect of a Succession Certificate is that subject to the provisions of Part X of the Act (the Part which governs Succession Certificate), the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted.[xii]

Filing of Income Tax Returns on behalf of the deceased[xiii]

The legal heir is responsible for paying taxes liable on the Income Tax Return (ITR) of the deceased. However, he is not personally liable for the taxes due. The liability of the legal heir is limited to the extent to which the assets he inherited are capable of meeting the liability.

The following is the process required to file ITR for a deceased person:

1. Register oneself as the legal heir of the deceased at the Income Tax Portal.

Note: Documents required for such registration are as follows – Death Certificate, Legal Heir Certificate, PAN of the deceased, self attested copy of the PAN of the Legal heir registering.

2. Legal Heir request is sent to the e-filing Administrator. The e-filing administrator will verify the request and approve /reject as applicable.

3. Once registered, the process of ITR filing can be done. It is pertinent to note the calculation of income, tax payable etc.

Claiming the Assets of the deceased:

After the death of asset holder, after few weeks/months – its time to claim their assets and properties. That time, there are lots of paperwork and procedure to be followed. You have to claim their Fixed deposits, Saving bank accounts, Bank lockers, PPF (Public Provided Funds), EPF (Employee Provided fund), Post Office Deposits, Mutual Funds, Stocks and Shares, Life Insurance Policies, NSC, Real Estate Property, Bonds (If any). All of this involves excessive paper work. Along with the claim application, it is essential to submit the death certificate and the legal heir certificate or succession certificate.

In case of banks, when Nomination has been registered with the bank, the nominee can apply to the Bank, giving full details of the accounts of the deceased depositor. On receipt of the claim from the nominee, the branch will verify the photocopy with the original Death Certificate, Nomination number as registered in CBS, Nomination register. When satisfied, the bank will fulfill the claim.

Similar is the process for all the other asset claims. The most important step is to know the documentary requirements in each sector and proceed accordingly.

Conclusion:

As much as coping with the loss of a loved one may be difficult, it is also important to perform the legal formalities with due care and diligence. The claim process may differ from each institution to the other, depending on their internal policy and management decisions. However, the four major documents are Death Certificate, Legal Heir Certificate, Succession Certificate and Probate along with the relevant claim application. Hence, as legal heirs it is the duty to obtain all the certificates and complete the formalities at the earliest.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Ss.4-7, Registration of Births and Deaths Act, 1969.

[ii] S.30, Registration of Births and Deaths Act, 1969.

[iii] https://archive.india.gov.in/howdo/howdoi.php?service=2

[iv] https://archive.india.gov.in/howdo/service_detail.php?formid=268&service=2

[v] http://crsorgi.gov.in/web/uploads/download/Procedure_for_B_&_D_Registration.pdf

[vi] Uma Devi Nambiar v. TC Sidhan, 2004 (2) SCC 321.

[vii] Elsy & Ors. v. V. K. Raju & Ors., AIR 2007 Ker 235.  

[viii] S.293, Indian Succession Act, 1925.

[ix] S.371, Indian Succession Act, 1925.

[x] S.372, Indian Succession Act, 1925.

[xi] https://www.indiafilings.com/learn/get-succession-certificate-india/

[xii] S.381, Indian Succession Act, 1925.

[xiii] https://cleartax.in/s/file-income-tax-return-for-deceased-by-legal-heir

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I'm AISHWARYA LAKSHMI VM, pursuing B.B.A., LL.B (Hons) at School of Excellence in Law, the Tamil Nadu Dr. Ambedkar Law University and the Professional program of the Company Secretaryship course. My area of interest not only includes corporate, taxation, commercial and economic laws but also environmental law and human rights. I've participated in several national and international moots and won several accolades. I'm also the Secretary of the Moot Court Association of my college. A firm believer in team work, time management and commitment, I always endeavor to be unique and to carve out a space for myself in whatever I undertake. During my free time, I read fiction, listen to music and experiment my culinary skills