Succession involves the practice of passing on private property, title, debts, rights and obligations upon the death of an individual. As a legal terminology, succession encompasses “taking the rights of another as his or her successor”. In the context of property, succession is a kind of transfer of title to property of descendent under the law. It entails the transfer of legal or official power from an individual who formally held them to another who undertakes current responsibilities to execute those powers.
Further, the law of succession defines the rules of devolution of property in case a person dies without making a “will”. A will is a legal declaration. A valid will must comply with certain formalities. A will is intended to dispose of/transfer the property. There must be some property to be transferred to others after the death of the owner.
Below is some information regarding succession as per the Civil Code, 2017, in Nepal.
Order of preference of heirs for succession
The order of preference of nearest heirs for succession is as follows:
- Husband or wife living in the undivided family
- Son, daughter, widow daughter-in-law living in the undivided family
- Father, mother, stepmother, grandson, granddaughter, granddaughter-in-law on the side of son or daughter, living in the undivided family
- Separated husband, wife, son, daughter, father, mother, stepmother
- Separated grandson, granddaughter from the son’s generation
- Separated grandfather, grandmother,
- Grandfather, grandmother, elder brother, younger brother, elder sister, younger sister, elder brother’s wife or younger brother’s wife (widow) living in the undivided family
- Uncle, aunt, nephew, niece, living in the joint family
- Separated elder brother, younger brother, elder sister, younger sister, elder brother’s wife or younger brother’s wife (widow).
- The person who is in the first order of preference listed above at the time when succession to one’s property is open but who is serving the person in the subsequent order of preference shall not be entitled to succession.
- Further, if there are more than one heirs in the same order of preference, all of them shall equally be entitled to the succession. If any heir in the order of preference entitled to succession does not intend to succeed, the other heirs in the same order shall be entitled to succession. If any heir in that order of preference does not intend to accept succession, the heir in the successive order of preference shall be entitled to the succession.
Distant heir’s entitlement to succession
According to section 240 of Civil Code,2017, if a person dies when he or she was staying with any distant heir after taking his or her partition share of property in spite of having his or her nearer heir and succession to him or her open, the heir with whom that person was so staying shall be entitled to his or her property succession.
In addition to this, section 241 of the same code provides that if a close heir has not taken good care of a person but a distant heir has done so, the distant heir who has so taken care of him or her shall be entitled to succession.
Obligations and rights of the person upon whom succession is devolved
The obligations and rights of the person upon whom succession is devolved shall be as follows:
- To perform funeral and obsequies of the deceased according to his or her rites and rituals. However, if the funeral and obsequies of a deceased have been performed by a person other than one who is entitled to the succession, the person so entitled shall pay the costs incurred in the performance of funeral and obsequies and additional 25 per cent of such costs to the person who has performed such rites
- To repay the debt borrowed by the deceased to the creditor
- To have right over the debt lent and investments made by the deceased.