Inheritance/Aputali Law in Nepal

What does the inheritance mean?

The process of passing on the private property of a deceased person to his/her nominee or successor after his/her death is referred to as inheritance.

Following the death of an individual, the process of transferring all the ancestral properties legally and thus distributed among his/her successor is known as inheritance.

As set out in the National Civil Code 2017, inheritance refers to succession that concerns the wealth and property of the deceased and related duties and rights transferred to the nominee/successor.

What is the difference between a co-parcenary and an inheritance?

They exist in a joint family that includes three generations, such as the great grandfather, the grandfather, the father, and the son.

These groups of people will have the right to hold property as the legacy continues. It is important to discuss the right of ancestral property to understand the question of inheritance.

The right to ancestral property is achieved simply by means of the right of birth. Whereas the inheritance is the transfer of the private property of an individual to his or her nominee or successor upon his or her death, and that cannot be disputed.

Traditionally, this right is applied to the equitable distribution of the property among successors who will have the right to sell or dispose of the property on their own will.

Inheritance refers to the situation in which the person has no successor or, after the division of the property, the successor is transferred to the nominee.

How many kinds of inheritance are there? 

There are three types of inheritance as set out below: 

1. Transfer of inheritance  rights in written form. 
2. Transfer of inheritance rights in an unwritten form.
3. Transfer of inheritance rights by will.

Transfer of inheritance rights in written form 

The National Civil Code 2017 provides that the person who has inherited the property has the right to transfer the property to his successor or nominee in writing prior to his/her death before the registration authority.

This type of written inheritance is referred to as a gift statement or a desired gift statement. This written inheritance may be granted to a nominee or successor, or to a distant relative, or to a person not related to blood.

In a situation where the close successor does not take care of the deceased and there is an equal successor, the deceased grants the right to property to whom he/she trusts by means of a binding contract to ensure his/her safety. A written inheritance shall create duties and responsibilities for the holder of the property with or without any preconditions.

The nominee or successor MUST take care of the original owner of the property and fulfill his/her medical requirements until his/her death, and MUST perform all the funeral rites.

If a person named as a successor or nominee is found to have violated the provisions of the legal document, that legal document may be amended to remove the name of the successor or nominee.

In a situation where the nominee/successor has found that he/she has not acted as stated in the legal document, the other successor/nominee may not, in that case, question the death of the original right holder if there are no amendments made in the legal document.

Transfer of inheritance rights in unwritten form.

If the deceased has not made a written inheritance indicating the transfer of any nominee/successor to private property, it will be transferred directly to his/her closest successor in line.

If the closest successor in the line of that person does not take care of that person, the inheritance will be handed over to the person who takes care of that person and performs the rites.

Transfer of inheritance by  way of will 

In the event that the declaration of inheritance is not made in writing and has not been registered before the relevant office, the property will also be passed on to the nominee/successor who has been designated as the successor by the deceased in any form whatsoever.

In most cases, the transfer of tangible property to the nominee or successor is possible. For instance, the bank account or the shares. This is completely dependent on the deceased.

Who has the right over the inheritance? 

Inheritance right nominee/successor is referred to as the closest successor on the male side until the seventh generation. If the seventh generation passes away, there will be no successors left, then the rights will be limited to their brothers.

In this situation, the provisions of the National Civil Code 2017 mention the role of successor.

Under the provisions of the National Civil Code 2017 on inheritance, specified individuals have the right to property: 

1. Decedent’s husband and wife 

2. Son, daughter, widow daughter of the law 

3. Decedent’s father, mother, stepmother, grandson/daughter on the son’s side 

4. Separate husband, wife, father, mother, and stepmother. 

5. Granddaughter, the grandson on the side of the son. 

6. Separated Grandpa, Grandma 

7. Deceased’s grandpa, grandma, elder brother, younger brother, elder sister, younger sister on the father’s side. 

8. Uncle of Decedent, aunt, niece, nephew 

9. Decedent’s older sister in law, the younger sister in law, 

10. Separate elder brother, younger or older sister, younger sister.

11. Other nominees from the closest of the seven generations to the male side.

In the event of an inheritance, it cannot be passed on to the other person who breaks the priority list line if the person is still alive. If there is more than one equal successor, each of them will have an equitable share of the inheritance.

Does the married daughter have the right to an inheritance if she takes care of the deceased and the son moves away from his responsibilities?

In the event that the son avoids his responsibilities towards the deceased and that the married daughter bears full responsibility for the care of the deceased, the daughter, the son-in-law, the grand-daughter and the grand-son shall inherit the inheritance of the father, the mother, the father-in-law and the grandparents.

Who is entitled to an inheritance in the event that the deceased has merged his/her ancestral property?

In the event that the parents who have more than one spouse and children, and thus all the spouses, sons, unmarried daughters, daughter-in-law share the property in accordance with the law and live with the unmarried daughter, the daughter-in-law and one of the spouses who share their share of the property, then in such a situation, if the parents die leaving the inheritance, then that inheritance belongs to the one with who the parents share the property in common.

How does an inheritance be created if the son of the deceased and the brothers and sisters of the deceased avoid his responsibility to care for the deceased?

If the deceased’s son avoids his responsibility to take care of the deceased, and instead the deceased’s brothers and sisters take care of the deceased, then those brothers and sisters who take care of him receive the inheritance, not others.

Who is entitled to the right of inheritance if the closest successor of the deceased avoids his responsibility to take care of the deceased and someone else takes care of him or her?

If the closest successor to the deceased does not have the responsibility of caring for the deceased, then the person who bears the responsibility of caring for the deceased shall have the right of inheritance, provided that whatever is contained in the chapter of the inheritance.

Is it possible for the nominee/successor to waive his/her right of inheritance if he/she wished to do so? 

If a nominee/successor wishes to waive his or her right to an inheritance, they cannot be forced to inherit such an inheritance. It’s an entirely independent choice. The nominee/successor MUST perform a funeral ritual, despite choosing to inherit or not to inherit the inheritance.

The remaining inheritance after performing the funeral rite MUST be paid to the creditor of the deceased if he or she owes it to any lender.

The Government of Nepal shall have the legal right over the remaining assets, unless the deceased owes any debt to be paid or the assets left behind after any debts have been repaid. The right to the remaining assets shall be transferred directly to the Government of Nepal.

What happens to the inheritance if the nominee kills the deceased because of any greed or anger? 

Clause 18 of the inheritance states that if the nominee/successor kills the deceased out of the vendetta, the inheritance of the deceased and the inheritance of his children cannot be passed on to the nominee/successor or their children.

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