Losing loved ones during the pandemic: The legal rights of Muslim heirs
As deaths surge daily, we are losing innumerable friends and family during the health crisis created by the global pandemic. As a legal professional, I often have to deal with clients facing legal issues with properties and inheritance. However, due to a significant increase in death rates resulting from Covid-19, more and more people are now facing inheritance related problems. While coping with grief and loss, legal complications and procedures become one of the many burdens that a grieving family often has to deal with.
It is often the case that the deceased leave behind estate or assets that they possessed during their lifetime. The estate comprises of all property that the deceased had owned, whether moveable and/or immovable. When Muslims die, there are four duties that need to be performed with such assets they possessed.
They are—paying funeral and burial expenses, paying debts of the deceased (if any), determining the will of the deceased, if any (which can only be up to one third of the estate), and distributing the remainder of estate and property amongst the relatives or heirs of the deceased. In Bangladesh, legal distribution of property in such circumstances is governed by the principles of Shariah law.
Therefore, it is necessary to determine the relatives of the deceased who are entitled to inherit the estate or property along with the proportion of the shares to be inherited by them individually and collectively. Broadly, according to the principles of Shariah, spouse, parents, children, grandchildren, siblings, grandparents (paternal), grandmother (maternal), uncles (paternal), nephews/nieces are considered as heirs (warish) to a deceased's estate. The ambit of this head is too broad and as a result, even distant kindred are entitled to succeed thereto in the absence of primary heirs. Further, it is important to bear in mind that a son inherits double the share of a daughter in such circumstances. As such, inheritance is considered as an integral part of Shariah Law and the heirs and descendants have the right to claim the estate and property of the deceased.
However, inheriting a deceased's property does not happen automatically and the heirs must take certain legal steps in order to ensure legal transfer of the properties. Firstly, it is essential to make an inventory of all assets. Part of the work of making the inventory of assets is finding them all. This task could include collecting a complete set of property ownership documents from land offices; ascertaining bank accounts, shares, stocks, bonds etc; locating vehicle registration documents etc and could require some time.
Next, one of the key documents the heirs have to collect is the Warishan Certificate or Legal Heir Certificate. This certificate is essential in order to determine the number of legal heirs and the proportion of share of property to be received by each legal heir. Such a certificate plays an essential role during property division/partition; mutation of property; declaratory suits; collecting pensions etc.
Yet another key document needed 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 is the Succession Certificate. Such a certificate is to be obtained from the Court of Joint District Judge as per the Succession Act, 1925. It is now possible to file for the succession certificate in the virtual court. A succession certificate is usually compulsory to transfer movable properties such as shares, stocks, bonds, funds in bank accounts etc (in the absence of a nominee) or even for the transfer of ownership of vehicles.
Once the said certificates are procured, the legal heirs can next move towards mutation of lands that had been owned by the deceased. The process of mutation is the insertion of the name of the new owner(s) in the Khatian (Record of Rights) to replace the former owner upon transferring the ownership of land(s). To mutate a piece of land, one has to apply to the Assistant Commissioner (Land) office. Executing and registering a Partition Deed at the relevant Sub-Registry office may also be required at this point in order to divide or demarcate the property amongst the legal heirs.
It is generally upon completion of these steps, that the inheritors can successfully transfer the properties in their individual names. It may sometimes be the case that the inheritors agree and desire equal distribution of property. In such circumstances, they ought to legally transfer the portion of properties amongst one another through registered deeds, upon completion of the transfer of properties in their individual names.
Indeed, the law of intestate succession is one of the most complex segments of law associated to one's life and it is almost impossible to point out each and every aspect in a gist. As such, it is imperative to stay patient with the process, but moving forward in a planned manner would make things much smoother and easier. Certain procedures may take slightly more time than usual considering the pandemic situation. However, don't panic and make sure to start the process with the help of an experienced lawyer who will be able to make the whole procedure more comfortable for you.
Sayeda Silma Tamanina is Barrister-at-Law and Advocate, Supreme Court of Bangladesh.
Email: [email protected].