NRI EDGE

Writing a Will for Indian assets
when your children are settled abroad

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Know how to make a Will as an Indian resident with NRI children
Know key considerations if you and your children are both NRIs
Understand critical aspects from a tax perspective

The below content is purely for informational purposes and is not intended to constitute advisory of any kind. The position reflected in this article has been updated as of November 15, 2023.

Inheritance deals with the transfer of a person’s property, title, etc. after their demise to another person. A person can inherit a property in two ways:

Either through a valid Will i.e., testamentary succession; or
Through laws of intestate succession, i.e., when a person passes away without making a Will and the property devolves upon another as per the relevant succession laws in India.

It is advisable to have a Will in place to ensure that your estate devolves as per your desire after your demise. This is especially important incase your children are Non-Resident Indians (NRIs) and are not physically present in India. The legal process for testamentary succession and intestate succession are different. Please click here to understand the requirements of intestate succession for inheritance.

Indian residents making a Will in India for NRI children

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Permissibility	Your NRI or Overseas Citizen of India (OCI) children can acquire any immovable property (residential and commercial, agricultural land including farmhouses) in India by way of inheritance from a parent who is an Indian resident*.
Points to consider while drafting a Will	The testator (i.e., the person making the Will) must be of sound mind and be of at least 18 years of age. You should consider including the following aspects in your Will for Indian assets: Personal details: Include your details such as full name, date of birth, residential address, and identification document number (like Aadhaar number, Permanent Account Number (PAN) or passport number) and those of the beneficiaries/ legatees (i.e., in present scenario, your children). Information about the assets: You must ensure that you clearly outline all your assets (such as real estate, cash, jewelry, shares, other investment instruments, etc.) to be bequeathed and distinctly describe each asset to avoid any ambiguity. Further, if you have more than one child, it is recommended that you clearly identify each legatee/ beneficiary vis-à-vis every asset (or part thereof) that you wish to entrust in your Will, including relevant share/ proportion. Appointment and details of the Executor: As per the Indian Succession Act, 1925**, executor means a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided. Such person shall be responsible for ensuring your wishes are carried out in accordance with your Will. In view of this, it would be advisable to appoint a competent executor under your Will and clearly mention their name, age, address, and relation to the testator. Declaration: Include a declaration that you are writing a Will (a) without any coercion, fraud, or undue influence; and (b) of your free will with a sound mind. Date: It is important to mention the date on your Will. For further details on points to consider in relation to a Will, please click here.
Signature and witness	The Indian Succession Act, 1925, requires that the Will be signed by the testator (i.e., you) in the presence of two or more witnesses. These witnesses would also have to sign the Will. Presence of your children as legatee/beneficiary under the Will is not essential.
Revocation or alteration	A Will can be revoked or altered by you at any time as long as you are competent to dispose off your property by Will.

*Master Direction – Acquisition or Transfer of Immovable Property under Foreign Exchange Management Act, 1999 issued by Reserve Bank of India dated September 01, 2022.

**The Indian Succession Act, 1925 primarily governs provisions in relations to the Will made by Hindu, Buddhist, Sikh and Jains. Persons from other religions may be governed by relevant legislation, codified or uncodified laws.

NRIs making a Will in India for NRI children

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Permissibility

Your NRI or OCI children can acquire any immovable property in India by way of inheritance from you, provided you had acquired the relevant property in accordance with the provisions of the foreign exchange law in force at the time of such acquisition*.

Points to consider while drafting a Will

As an NRI/OCI, you can draft your Will either in India or outside India.

Writing of Will in India: In case you are writing a Will in India, please refer to the table above in respect of making of the Will, its execution, and other requirements.
Foreign Will: As an NRI making a Will outside India (a foreign Will), since the laws of multiple countries come into play, to understand the implications and points to consider when writing such a foreign Will, click here.

Separate Wills

As an NRI/OCI, if you have assets located in more than one country, it would be ideal to prepare separate Wills for Indian assets and the assets located in different countries. This will help avoid conflicts, difficulty in execution and recognition of the Will in view of the varied succession laws of the respective countries.

*Master Direction – Acquisition or Transfer of Immovable Property under Foreign Exchange Management Act, 1999 issued by Reserve Bank of India dated September 01, 2022.

To understand the broad steps to be followed by your children to transfer real estate property upon inheritance in their own names click here. To navigate the intricate landscape of estate laws and ensure your Will complies with all relevant laws, it is advisable to engage the services of a lawyer well-versed in the estate laws of India or the country in which you are making a Will. Their expertise will help you draft a legally valid and enforceable document.

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Conclusion

It is important to have a Will in place to avoid any potential ambiguity in relation to inheritance by your children settled abroad. It is also important to adhere to the required formalities, such as proper signatures, presence of witnesses, etc. in accordance with the applicable laws. Engaging the services of a lawyer who understands NRI estate planning can help you navigate the complexities of cross-border inheritance.

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Disclaimer:

The contents of this article/infographic are meant solely for informational purposes. The contents are generic in nature and are not intended to serve as a substitute for specific advice on any matter whatsoever. The information is subject to updation, completion and verification and the applicable norms may keep changing materially from time to time. This information is also not intended for distribution or use by any person in any jurisdiction where such distribution or use would be contrary to applicable laws or would subject ICICI Bank Limited/its affiliates to any licensing or registration requirements. ICICI Bank Limited/its affiliates and their representatives shall not be liable for any direct or indirect losses or liability incurred arising in connection with any decision taken by any person on the basis of this content. Please conduct your own due diligence and consult your financial advisor before making any decision. Terms and conditions of ICICI Bank and third parties apply. ICICI Bank is not responsible for third party services. Nothing contained herein shall constitute or be deemed to constitute an advice, invitation or solicitation to avail any products/ services of third parties.