What "intestate" means
A person dies intestate when they leave no valid will covering their property. The law then decides who inherits, in what order and in what shares, and the family's own view of what is fair does not enter into it.
Two warnings before the rules, because both cause real losses.
A will that exists is not the same as a will that is proved. A will has to be established in court before it does anything, and the usual way it fails is that no attesting witness is examined — see our explainer on a registered Will that failed for want of an attesting witness. Registration does not prove a will. If a will cannot be proved, the estate is divided as if there were none, which is exactly the situation this guide describes.
Ancestral and self-acquired property follow different rules. A share in Mitakshara coparcenary property devolves under Section 6 of the Hindu Succession Act; a person's own self-acquired property passes under Section 8 where there is no will. Daughters are coparceners in ancestral property by birth — see Vineeta Sharma — and that right does not depend on when the father died. This guide is about the Section 8 route, which is what applies to self-acquired property.
The order of succession for a male Hindu
Section 8 sets out four tiers, taken strictly in order:
- the heirs in Class I of the Schedule;
- if there is no Class I heir, the heirs in Class II;
- if there is no heir of either class, the agnates of the deceased;
- and lastly, if there is no agnate, the cognates.
Section 9 then does the work people most often get wrong:
Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on.
Read that twice. If there is even one Class I heir, nobody in Class II inherits anything. No brother, no nephew, no grandparent. This is why a surviving widow and children exclude the deceased's siblings entirely — a result that surprises families constantly.
How the shares are worked out — Section 10
Section 10 divides the property among Class I heirs by four rules.
| Rule | Who | Share |
|---|---|---|
| Rule 1 | The widow — or all the widows together where there is more than one | One share between them |
| Rule 2 | Each surviving son, each surviving daughter, and the mother | One share each |
| Rule 3 | The heirs in the branch of each pre-deceased son or pre-deceased daughter | One share between them |
| Rule 4 | Within that branch | See below |
Rule 4 splits the branch share: among the heirs in the branch of a pre-deceased son, his widow (or widows together) and his surviving sons and daughters get equal portions, and the branch of his own pre-deceased sons gets the same portion.
Two points worth drawing out.
- Sons and daughters take equally under Rule 2. There is no distinction.
- Multiple widows share one share. They do not take one each. This is the distinction in Rule 1 most often missed.
A worked illustration
Suppose a man dies intestate leaving self-acquired property, a widow, two sons, one daughter and his mother, and no pre-deceased children.
Counting shares under Rules 1 and 2: the widow takes one, each son takes one, the daughter takes one, the mother takes one. That is five shares, so each takes one-fifth. The deceased's brother takes nothing, because Section 9 excludes all other heirs while a Class I heir survives.
This illustration applies the rules in Section 10 to a simple set of facts. Real estates are rarely simple — a pre-deceased child, a second marriage, property inherited rather than earned, or a coparcenary share all change the answer.
Where the deceased is a female Hindu
The scheme is different, and using Section 8 here is a common and costly error.
Section 15(1) devolves a female Hindu's property firstly upon her sons and daughters (including the children of any pre-deceased son or daughter) and her husband; secondly upon the heirs of the husband; thirdly upon her mother and father; fourthly upon the heirs of the father; and lastly upon the heirs of the mother.
Section 15(2) then carves out two important exceptions:
- property she inherited from her father or mother devolves, in the absence of any son or daughter of hers (including children of a pre-deceased son or daughter), upon the heirs of her father — not on the Section 15(1) order;
- property she inherited from her husband or father-in-law devolves, in the same absence, upon the heirs of the husband.
So the source of the property can change who inherits it. Section 16 sets out the order and manner of distribution among these heirs, preferring earlier entries to later ones and letting the children of a pre-deceased son or daughter take the share their parent would have taken.
What this guide does not tell you
- It does not reproduce the Schedule. Section 9 works by reference to Class I and Class II of the Schedule to the Act, and the full list of heirs in each is in that Schedule. The heirs named above are those named in Section 10's own rules. For a complete list, read the Schedule itself.
- It does not cover non-Hindus. The Hindu Succession Act is one of several succession laws in India. Succession governed by a different personal law, or by the Indian Succession Act, follows different rules.
- It does not settle your family's facts. Whether a particular property is ancestral or self-acquired is a question of evidence, and it is the question most disputes actually turn on.
If you would rather there were a will
Section 30 allows any Hindu to dispose of by will any property capable of being so disposed of, in accordance with the Indian Succession Act, 1925 — and its Explanation extends that to a male Hindu's interest in Mitakshara coparcenary property. A will is how you displace everything above.
The practical lesson from the judgment linked at the top of this page is that writing a will is the easy part and proving it is the hard part. Attestation by witnesses who can actually be produced later is what makes a will work.
Section text is in our legal codes reference. You can also ask our AI assistant about your own situation before seeing a lawyer.