Should NRIs make separate Wills for assets in different countries?

The transfer of property depends upon the nature of the property, the domicile and at times the residence and the citizenship of the individual. Your family may consist of parents, siblings or others in or outside India and you may wish to provide for some or all of them or for that matter even contribute to a cause in your home town, home city or city of residence. You have options of how this can be achieved. That is where ‘Nexgen’ will be with you.
Legal Concerns for NRI/PIO

The transfer of property of an NRI living in a foreign domicile, when such property is located partly in India and partly situated abroad, often poses awkward questions. Must a NRI make a Will or leave his property to natural succession.

Should the NRI make a joint, composite or common Will of his assets and properties in India and abroad. If so, should such a Will be registered and where. Should the NRI appoint different executors in different jurisdictions. Would it be better if there are different wills for separate properties in India and abroad? Should such different wills be registered individually in separate jurisdictions. How should inheritance rights of beneficiaries of NRIs be safeguarded in India and abroad. Which law Indian or Foreign would apply to assets and properties of NRIs in different countries.

Our Advice

To begin with, for an NRI, it is advisable to execute a written Will, get it witnessed and registered to avoid any complexities of succession and inheritance. A NRI should Will his property by choice to his natural heirs or others and thus eliminate speculation or bogus claims from claimants and pave a smooth succession.

There are well defined principles of International law, which regulate succession to the movable and immovable properties of a Hindu NRI domiciled outside the territory of India.

Thus, based on International Law, three principles can be inferred on the application of Hindu Succession Act (HSA 1956):

  1. For a Hindu domiciled outside India, succession to his immovable property in India is governed by HSA 1956 whereas succession to his movable property shall be governed by the law of the country of his foreign domicile.
  2. Where a Hindu is domiciled in India, succession to his immovable property outside India shall be governed by the law of the country where the property is situated. Movables outside India will be governed by HSA 1956 or by the local law of the foreign country in which the movable property is situated.
  3. For a Hindu domiciled outside India, succession to his movable and immovable property outside India shall not be governed by HAS 1956 but by the law of the foreign domicile of the Hindu.

As the Hindu Succession Act is not applicable outside India, it is strongly recommended that NRIs of Hindu origin having immovable assets in different countries can execute a joint composite Will pertaining to all their immovable properties located in different jurisdictions.

For NRIs, execution of separate Wills for separate immovable properties in different countries might not be advisable. Establishing genuineness of a composite Will is easier than proving multiple Wills.

It is also recommended that the NRI must register the Will separately in every jurisdiction even though it is optional in India to do so. Please note that the registration in a particular country usually holds good in respect of properties of the NRIs in that jurisdiction. Accordingly, separate rules of registration of different countries need to be complied with as per rules of the foreign domicile of the NRI.

We at Nexgen also advise that the NRI should specifically appoint an executor to execute the Will in the particular jurisdiction where the property is situated. This assists the beneficiaries and simplifies the division of assets as per the Will.

A written Will of an NRI duly witnessed and registered in respect of Indian properties identifies the claimants and legal heirs. Its multiple registration assures the seal of finality.

For an Indian Will to be valid, the Will should be attested by a Notary Public, sent to Foreign and Commonwealth Office for an ‘Apostille’ stamp, sent to the Indian High Commission for a ‘consular’ stamp, as well as ensuring that the Will is drafted correctly.

So, our advice for the NRI therefore is, to act well in advance and simplify the task of the beneficiaries who are to inherit their properties. Thereafter, the law of the jurisdiction, where the property is situated will govern the process of succession based on rights established under the Will.

Nexgen Estate Planning Solution helps NRI’s/PIO’s in drafting, registering, validating Wills.

Why Nexgen?

Nexgen offers an ‘in house’ solution, so that process is handled by us start to finish, Our team of Will specialists can provide best in class advice on passing on your immovable property in India to your chosen heirs in India or abroad in the most tax efficient way.

We can prepare valid Wills for India.

We can advise on the validity of a Will.

We can advise on whether a Will or probate order (often referred to as a ‘grant’) is valid and binding in India.

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