An NRI will is a legal document through which a Non-Resident Indian decides who should inherit his property in India after his death. Without a will, the property passes under the succession law applicable to the family, which may not match the owner’s wishes and may involve long delays. A properly drafted will reduces disputes and helps the heirs to transfer the property. This guide explains the main points for NRIs with Indian assets.
How NRIs Should Plan Succession for Property in India Through a Will
Which law applies?
The succession to immovable property in India is governed by Indian law, whatever the owner’s country of residence. For Hindus, Buddhists, Sikhs and Jains, the Hindu Succession Act, 1956 applies to intestate succession and the Indian Succession Act, 1925 governs wills. Muslims and Christians are governed by their own rules. A Muslim can bequeath only up to one-third of the estate without the heirs’ consent. Foreign law may govern the assets located abroad, so the will should be coordinated.
Why an NRI will matters
- To avoid delay and disputes among heirs.
- To pass the property to chosen persons, such as a spouse, children or a trusted relative.
- To appoint an executor in India who can act quickly.
- To plan for properties that cannot be inherited in certain ways, for example agricultural land. See our guide on NRI agricultural land in India.
Requirements for a valid will (Section 63)
- The will must be in writing, made by a person of sound mind who is an adult.
- The testator must sign it (or affix a thumb impression) or have it signed in his presence and by his direction.
- It must be attested by at least two witnesses, each of whom saw the testator sign, and each signs in the presence of the testator.
- A beneficiary should not be a witness, so that the will is not challenged.
A will executed abroad can be valid for Indian property if it follows these requirements. To avoid conflict, many advisers recommend a separate will for Indian assets and another for assets abroad, each stating that it deals only with the assets in that country and does not revoke the other.
Registration
Registration of a will is optional, but it makes it harder to claim that the will is forged. A will can be registered at the Sub-Registrar’s office or deposited with the Registrar. A will executed abroad can be registered when the testator visits India, or the attested will can be kept with a lawyer.
Probate
A probate is a court’s certificate that confirms the will and authorises the executor to act. Under the Indian Succession Act, probate is compulsory for wills made by Hindus in the areas of the former presidency towns, including Chennai, in respect of property in those areas. Elsewhere in Tamil Nadu, probate is not mandatory, but banks, registries and buyers may ask for it. Check with a lawyer whether your property falls in the area requiring probate.
Choosing an executor and trustees
- Choose a reliable person who lives in India, and name a substitute.
- Consider a lawyer or a professional as co-executor in case of family disputes.
- If the beneficiaries are minors, appoint a guardian or provide for a trust.
Coordination with other assets
- Bank accounts: Update the nominee in NRO and NRE accounts and joint holders. A nomination does not override the will, but it helps the bank release funds.
- Insurance, mutual funds and shares: Update nominees.
- Jointly owned property: Check the share that can be bequeathed.
- Ancestral property: A Hindu coparcener can bequeath his undivided share, subject to the law.
- Property abroad: Consult an adviser in that country.
Common mistakes
- Using a single will for assets in several countries without coordination.
- Not describing the property correctly (survey number, extent, boundaries).
- Having beneficiaries as witnesses.
- Not updating the will after marriage, birth of children or purchase of new property.
- Leaving the original in a foreign bank locker that heirs cannot access easily.
- Believing that a nomination alone is enough.
After the testator’s death
The executor applies for probate (where needed), obtains the death certificate and legal documents, and transfers the property and the patta. The heirs who are NRIs should read our guide on NRI inheriting property in India, and for tax on a later sale, TDS on sale of property by NRI. A trusted person with a valid power of attorney can help manage the property during the process. See NRI power of attorney for property.
How we can help
Apex Law Office LLP drafts NRI wills for Indian property, advises on probate in Tamil Nadu and coordinates with advisers abroad. The Acts can be read on India Code.
Frequently Asked Questions
Can an NRI make a will for property in India?
Yes. An NRI can make a will for his Indian property, following the formalities of Indian law. A will executed abroad is valid if it satisfies the requirements.
How many witnesses are required?
At least two, who must each sign in the presence of the testator. Beneficiaries should not act as witnesses.
Is registration compulsory?
No, but it is advisable, since it provides strong evidence of the will’s genuineness.
Is probate compulsory?
For Hindus in the areas covered by the former presidency towns, including Chennai, probate is compulsory. In other areas, it is not mandatory, though it is often useful.
Should I make separate wills for India and my country of residence?
Many advisers recommend it, so that each will deals only with assets in that country. The wills must be drafted together to avoid conflict.
Can I change my will later?
Yes. You can revoke or change it at any time while you are of sound mind, by a new will or a codicil.
What happens if I die without a will?
The property goes to the heirs under the succession law of your religion, for example the Hindu Succession Act for Hindus. The heirs may need to obtain legal heir certificates and go through longer procedures.
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This article is general legal information and not a substitute for advice on your specific matter. Rules, rates and timelines change; verify the current position and consult an advocate before acting.
