NRI EDGE

Writing a Will in India: Key tips for NRIs

Read time: 7 mins

Copy

Points to consider while making a Will in India or abroad
Quick answers to common queries on Wills from NRIs

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.

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.

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. 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 Wil 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.

Key points while making a Will in India

Please note, tables are best viewed on desktop and in landscape mode on mobile phones

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

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 desires 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:

Key points while making a Will abroad

Please note, tables are best viewed on desktop and in landscape mode on mobile phone

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.

This is sample bottom text

Frequently Asked Questions

Expand All | Collapse All

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.

Recommended For You

Tax implications for NRI landlords

Navigating NRI Inheritance laws in India for real estate

How can NRIs use PoA in India to manage their banking needs?

Writing a Will in India: Key tips for NRIs

How does a Double Taxation Avoidance Agreement (DTAA) help an NRI/OCI/PIO?

Financial to dos before migrating abroad - name to be changed(aaradhitha chat)

Benefits of investing in PPF for NRIs in India

Disclaimer:

The contents of this article are meant solely for informational purposes. The same is generic in nature and is not intended to serve as a substitute for specific advice on any matter whatsoever. This information along with the applicable regulatory/statutory/ other norms is subject to updation, completion and verification from time to time. This information is 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/registration requirements. ICICI Bank Limited/its affiliates and their representatives shall not be liable for any direct or indirect liability incurred in connection with decision(s) 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.