The below content is purely for informational purposes and is not intended to constitute advisory of any kind. Please note, these are in-depth articles which are best viewed on large screen devices like laptops, desktops and tablets. The position reflected in this article has been updated as of January 15, 2024.

 

A ‘Will’ is a written legal document that allows you to state the way your assets are to be distributed after your demise.

 

Succession of property through a Will is called ‘testamentary succession’. In the absence of a Will, your assets would be transferred to relatives through ‘intestate succession’, i.e., as per the applicable succession laws. Such intestate succession may not reflect your wishes and can be contentious, costly, and time-consuming for your loved ones.

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Did you know?

The one who makes a Will is called a ‘testator’, and the person to whom assets are bequeathed is called a ‘legatee’ or ‘beneficiary’. You can authorise a person to execute your wishes or give effect to the Will, and such person is called the executor of the Will.

 

As a Non-Resident Indian (NRI) or Overseas Citizen of India (OCI), you can create a Will either in India or overseas.You can create a Will for different assets such as immovable properties and movable properties, bank account balances, shares, mutual funds, bonds, other financial instruments, vehicles, jewellery and any other personal belongings or valuables. If you have assets located in more than one country, it would be ideal to prepare separate Wills to avoid conflicts, difficulty in execution, and recognition of the Will in view of the varied succession laws of the respective countries.

 

Points to consider when writing a Will in India

Broadly, laws governing a Will in India for an NRI include

 

  • The Indian Succession Act, 1925;
  • The Registration Act, as applicable to the Indian state where the property is located or where the Will is made
  • The Foreign Exchange Management Act, 1999 (FEMA)

 

It is important to note that a Will for Indian assets can be drafted/written by an NRI anywhere, either in India or abroad. 

 

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Eligibility

  • The testator, or the one making the Will, must be of sound mind and at least 18 years old.

Assets and / or beneficiaries

 

  • You should list out and distinctly describe each asset that you want to bequeath.
  • Clearly identify (with full name and your relationship) with each legatee or beneficiary, i.e., the people who would inherit the assets vis-à-vis every asset. If an asset has to be split among multiple beneficiaries, then clearly mention the percentage share of each beneficiary. 

Format and language

 

  • Indian law does not prescribe any specific format or particular language for a Will.
  • However, it is important to ensure that the Will expresses your intentions clearly.
  • It would be prudent to write it in a language that you and your loved ones understand well.

Signature and witnesses

  • You, as the testator, should sign the Will mandatorily in the presence of two or more witnesses.
  • The current laws permit you to have someone else sign the Will on your behalf in your presence and under your direction. For instance, such circumstances could include a physically challenged testator.
  • The Will should also be signed by at least two witnesses.

Registration of the Will

  • It is not mandatory to register a Will in India. 

Probate 

  • A probate is a copy of the Will that has been certified through a legal process. This is a post-demise process that involves determining the authenticity of the Will in a court of law.
  • Probate is not mandatory for all Wills. It becomes compulsory in a few situations, some of which are detailed later in this article. 

Stamp Duty

  • There is no requirement to pay stamp duty on a Will.

Notarisation

  • A Will signed in India is not required to be mandatorily notarised.

Cancellation

  • You, as a testator, can cancel your Will by making a document cancelling the Will in the same manner as a Will is made or by destroying the existing Will yourself.

Alternation

  • You, as a testator, can modify your Will by making a document altering your Will in the same manner as a Will is made.
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Did you know?

If you have separate Wills for different countries for assets in different geographies, you should clearly specify which one should be considered as the primary Will and which ones as ancillary Wills. This would help in avoiding any confusion or disputes later.

 

Points to consider when writing a Will abroad

When you are making a Will while you are outside India (a foreign Will), you would need to comply with the laws of the country where the Will is being made/drafted.

 

If such a foreign Will captures in relation to assets based in India, the Will may not be automatically enforced in India. Your beneficiary or executor would have to undertake the following actions:

 

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 Probate

  • As indicated above, probate is a copy of the Will that has been certified through a legal process. This process involves determining the authenticity of the Will in a court of law.

  • For enforcement of a Will written abroad, the beneficiary/executor would be required to obtain probate from the court or authority of the relevant foreign country. 

 Authenticate

  • After obtaining a probated copy of the Will, you would be required to authenticate by way of an apostille (i.e., a legal certification that makes a document from one country valid for use in another country*) or any other manner as required by the relevant country.

 Submit

  • Such authenticated probate of the Will is required to be submitted to the relevant court in India to apply for ‘ancillary probate’ or ‘letter of administration’.

 

*In this regard, it is essential that both the countries should be party to the Hague Convention of October 5, 1961, 'Abolishing the Requirement of Legalisation for Foreign Public Documents (HCCH 1961 Apostille Convention).'

OPEN AN NRI ACCOUNT

 

Conclusion

To ensure a smooth and rightful transfer of inheritance, the suggested approach would be to have a Will in place. This way, you can ensure your wishes are addressed and your assets are distributed as you desire, no matter where they are. Getting professional help from a lawyer who understands NRI estate planning can help you navigate the complexities of cross-border inheritance.

Frequently Asked Questions

I am an NRI who owns two flats in India. I want to write a Will to bequeath the property to my children (one is a resident in India, and one is overseas). How can I do it?

You can bequeath your flats to both your children through a Will. There are no restrictions for bequeathing the flat to your child who is a resident in India. However, as per the prevailing FEMA regulations, if you want to bequeath the property to your child, who is also an NRI or OCI, you can do so, provided that you acquired the flat in accordance with the foreign exchange law in force at the time of your acquisition#. If the flats were acquired when you were an Indian resident (and not an NRI), then there are no restrictions under FEMA for bequeathing the property to either of your children.

#Master direction number 12/ 2015-16 titled “Master Direction – Acquisition or Transfer of Immovable Property under Foreign Exchange Management Act, 1999” as updated on September 01, 2022.

How is the movable property of an NRI divided amongst his/her legal heirs in India?

Movable property could include cash, paintings, jewellery, electronic devices, and vehicles.

Current foreign exchange laws do not have any specific provisions or restrictions on the inheritance of movable assets in India. However, as per the Indian Succession Act, 1925, bequeathing of movable assets is governed by the laws of the country of domicile* at the time of demise. For example: As an NRI, having his domicile in India, dies in France, leaving the moveable property in France, India, and the United States of America (USA). The succession to all such movable property will be regulated in accordance with the laws of India#.

Further, there may be other requirements you need to consider when it comes to your movable assets in India. For example, based on personal laws (i.e., the Indian laws applicable to you depending on your religion) there could be additional factors that come into play. Therefore, it is always a good idea to consult with a legal expert to make sure you have all your bases covered.

*As per the Indian Succession Act, 1925:

#Section 5 of the Indian Succession Act, 1925 

I am an NRI and have property in both, the United States and India. Do I need to create separate Wills for each country where I hold assets?

When you hold assets in different parts of the world, while it is not mandatory, having separate Wills could be helpful. There may be different succession laws applicable to each country and it would be ideal to prepare separate Wills to avoid any conflicts. This would also help to ensure that the Will is recognised in the relevant countries.

What is a probate?

A probate is a process where a Will has been certified in a court of law. It is a ruling issued by a competent court upon application by the executor after the testator has passed away, attesting to the validity and authenticity of the Will. While the Indian Succession Act, 1925 only provides for certain circumstances where probate of the Will is mandatory, you may consider probating the Will to secure the title and ensure no ambiguity.

Is it mandatory to get a probate in respect of the Will?

A probate is mandatory if the Will is made in a foreign country and the executor is trying to enforce the document in India for assets located within the country.

Other situations, as per the Indian Succession Act, 1925, that make probate mandatory are when:

  • The testator is a Hindu, Buddhist, Sikh, Jain, or Parsi making a Will in Kolkata, Chennai, or Mumbai; or
  • The testator holds and bequeaths any immovable property within the limits of one of the three aforementioned cities.

What is the difference between a nominee and an heir?

Heir means an individual who is entitled to succeed to the property of a deceased individual, in accordance with the will of the deceased individual or as per the applicable personal succession laws. Whereas a ‘nominee’ is an individual who only holds the legal title of the property for the benefit of others. Nomination does not confer any beneficial interest in the property to the nominee. Any property received by a nominee can be claimed by:

  • The heirs of the deceased individual in accordance with the applicable laws of succession; or
  • by the beneficiaries as provided in the Will by the testator.

I am an NRI with parents who are residents of India. Can I inherit an immovable property owned by my parents in India?

Yes. As per the prevailing FEMA regulations, an NRI can acquire any immovable property in India by way of inheritance from a person resident in India.

Does an NRI need to validate a Will registered abroad in India as well?

For the purposes of enforcement of a foreign Will (Will registered abroad) in India, the foreign Will would require to be authenticated by way of obtaining a probate from the concerned court or authority in the relevant foreign country. Subsequently, the probated copy of the foreign Will is required to be apostilled and filed before the relevant court in India for grant of letters of administration.

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