Law of Succession Definition: Everything You Need to Know
Law of succession definition refers to the law that applies to a succession. A different set of rules apply to testate and intestate successions.3 min read
What Is Succession?
The general meaning of the word, succession, is the process of following another. As a legal terminology, succession means taking the rights of another as his or her successor. It usually denotes the transmission of rights and obligations of the deceased to his legal heirs.
The word, succession, is also used to refer to the rights, estate, and charges left by a person after his or her death, irrespective of whether the value of the property is more or less than the charges. It may also signify the right of the heir to take possession of the estate of the deceased.
Succession not only includes the rights and obligations left by the deceased at the time of his or her death, but it also includes new charges, rights, and obligations that accrue to the existing ones after opening of the succession.
There are three types of successions:
- Testamentary succession: This type of succession is created when a testament specifying the heir to one's property is executed in a manner prescribed by law.
- Legal succession: It's the succession established in favor of the nearest living blood relations of the deceased.
- Irregular succession: It refers to the succession established by law in the absence of legal or testament-constituted heirs.
The lines of a regular succession rank in the following order:
What Is Successor?
Successor refers to the person who follows or replaces another. It denotes a person appointed or elected to a position or office, after the term of someone else.
The term, successor, is usually used in the context of a corporation. To refer to the person who has the right by descent to the estate of the deceased, it's more appropriate to use the word, heir.
What Is Inheritance Succession?
Inheritance succession is the distribution of property after the death of a person. An inheritance is same as the succession to rights and property of the deceased.
People usually want their estate to be distributed in a specific manner upon their death. Most of the people leave their property to their family, relatives, and friends. The property of the deceased is distributed in a certain order of priority. This ordering of property distribution is known as inheritance succession.
Testate and Intestate Succession
When a person dies, his or her property must pass to a living person.
Succession or this passing of property is regulated by the following twin regimes:
- Testate Succession (where the deceased has left a will)
- Intestate Succession (where the deceased has not left any will)
In the case of a testate succession, the estate of the deceased, after satisfying all existing obligations, is distributed in the manner set out in the will. In the case of an intestate succession, the estate is distributed according to the laws of intestacy.
Those with lots of wealth usually prepare a detailed will on how their wealth is to pass upon their death, whereas those with not much let it pass to their family without any actual preference.
Distribution of an intestate estate is done in the following order:
- Payments of debts
- Right to dwelling house
- Furniture and furnishing
- Right to cash
- Legal rights
- Free estate
The Law on Testate and Intestate Succession
Testate succession is relatively easier. The personal representative or executor needs to obtain a grant of probate to prove that the will is genuine. The probate allows the executor or personal representative to distribute the estate of the deceased according to the testament.
On the other hand, in the case of intestate succession, the personal representative must apply for letters of administration in order to be able to deal with the estate.
Improper drafting and dishonesty of a lawyer often comes in the way of fulfilling the wishes of the testator. It also affects the legitimate rights of the beneficiaries. If a solicitor fails to adhere to the laws of wills or testate succession, it may put the very validity of the will at stake.
Generally, a solicitor is under a legal duty to ensure that:
- The will accurately captures the instructions of the client.
- The testator is legally capable of making the will.
- The testator intends to make the will.
- The will meets the requirements of the wills law in force.
- The will is prepared without any undue delay.
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