A Non-Resident Indian (NRI) is a person who is of Indian origin, or is a citizen of India, but does not permanently reside in India as required under the Income Tax Act 1961 and the Foreign Exchange Management Act 1999.

Each year, more than 20 lakh Indians migrate overseas. While making a Will is important for everyone, for NRIs it is even more crucial, as they may have multiple assets located in different countries. If an NRI dies intestate, their family and loved ones might never know what real estate and financial assets they own in India. Thus, a Will serves as a repository for all your asset details, and ensures your estate is inherited by your chosen Beneficiaries.

Will-Making Essentials For NRIs

Contrary to popular belief, the essentials for NRIs wanting to make a Will for their Indian assets are very few. The person needs to be a major (over the age of 18), of sound mind, and should make the Will with free consent, ie without any coercion or undue influence. The Will should be in writing, signed by the Testator (maker of the Will), and attested by two credible Witnesses. The Testator should also name an Executor, and clearly mention the assets to be transferred, along with the details of the concerned Beneficiaries to whom the estate will be bequeathed.

Estate planning may seem like a tiresome and tedious process, especially for NRIs who may not be up-to-date with the numerous personal, local, and national laws regarding succession and inheritance in India, but not making one leaves family to muddle through the laborious and prolonged process of intestate succession. Without a Will, family who are not located in India, will often need to travel to obtain the a succession certificate, or letter of administration from the courts, in order to establish the relationship between the deceased and their heirs.

This requires the submission of the deceased NRI’s and legal heirs’ official documents, like birth and death certificates, identification documents, details of assets, and other credentials. The process of obtaining a succession certificate, or letter of administration, can easily take more than six months, provided no one contests the same. If anyone challenges or objects to the grant of the succession certificate, the case can be tied up in court for even longer, in which case it will be years before the assets of the deceased can be accessed by the heirs.

Nuances Of Succession Laws

Succession laws vary across countries, and depend on factors like where the deceased was living, where his / her movable and immovable assets are, and the presence of any obligatory inheritance rules (like forced heirship or community property laws) in the country where the person has now found a permanent home (domicile country).

As per the general principles governing domicile, for immovable properties located in a country, the succession laws applicable to the nation where the properties are would need to be followed. Movable properties can be bequeathed according to the succession laws of the nation where the NRI is living when he dies.

An interesting example to consider here is the case of UAE. Since 2017, UAE has given its non-Muslim expatriates the option to create a DIFC (Dubai International Financial Centre) Will. A DIFC Will enables such expats to appoint a temporary or permanent Guardian for minor children residing in the UAE, decide on division of their UAE and worldwide assets, registration of the Will, etc. In the absence of a DIFC Will, inheritance will be governed by the Sharia law.

Should an NRI make a separate Indian Will?

Though it is legally valid for an NRI to have a single composite multi-jurisdictional Will that covers all movable and immovable assets in different countries, it is a popular practice to create a separate Will for your Indian assets. A separate Will also facilitates quicker execution, as your family will not have to needlessly wait for the legal proceedings to end in your resident country before proceedings can be initiated in other countries to prove the Will. Further, separate Wills can altogether eliminate the need for proving the offshore Will, thus expediting the asset transfer process.

Will-Making Tips For NRIs

• Many people believe that appointing a Nominee for their bank accounts and investments is enough, but a Nominee is merely a Trustee of your assets and not necessarily a legal heir. Having a Will avoids any complications between Nominees and legal heirs as defined by succession laws.
• To ensure that your Will is legally valid, have it drafted by professionals who are well-versed with the succession laws that apply to you.
• Revisit your Will every year or two, so that you don’t miss updating any changes in your list of assets. It’s also a good idea to make sure your chosen Executor is still willing to take on his/her responsibility.
• Do not use ambiguous language; ensure your Will is well-worded and clear for everyone to understand.
• When picking an Executor, choose someone who is younger than you, trustworthy, and resides locally, to make it easier for any follow-up procedures. If you have multiple Wills, pick a different Executor for each Will.
• While preparing a Will, keep in mind the foreign exchange regulations for NRI Beneficiaries.
• Keep your original Will in a secure place. Inform your Executor of the location of the original Will and, if possible, provide them with a copy.
• NRIs do not have to be present in India to create a legally valid Will. As mentioned above, you need to only ensure that you are at least 18 years of age, and of sound mind, while signing the document in front of two Witnesses.
• Though India does not mandate the registration of Wills, a registered Will makes it easier to prove its legality and validity of a Will, if anyone ever challenges it in a court of law. Yellow provides hassle-free and convenient NRI Will registration assistance in India, or can guide you with the registration process at an Indian embassy in the country of your residence.

Always remember, it is your right to have your wealth distributed as per your choice. However, this right remains unexercised by most when they die intestate, or make an invalid Will. Families and loved ones suffer the most, as the process of acquiring the wealth of a deceased family member is not only mentally challenging, but can also be an expensive and time-consuming affair. In some cases, the litigation goes on for so long that the family members, especially NRIs, might be forced to leave the process unattended or incomplete. NRIs also visit India for a limited time and might not be familiar with the existing laws, which can make the Will-making process even more challenging.

You can avoid all the hassle by seeking professional help from someone specialised in estate planning services, like Yellow.

Our legal experts have 50+ years of experience planning estates, and have, to date, protected more than Rs 42,000 crores worth of assets for Indian families. As an NRI with assets in India, it’s important that you plan ahead. Our estate planning specialists can provide you with all the expertise and guidance required for a smooth transfer of all your assets to your successors.

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