WILLS FOR NON RESIDENT INDIANS

A Will is a legal document which should be made in the presence of two witnesses and attested by two witnesses which clearly sets out testator’s wish for the distribution of the assets after their death. A will is the simplest instrument for estate planning and transferring assets from one generation to another.
Some major advantages of making a will are as follows:

  1. Wealth distributes: After you make a will you will be assured about the distribution of your assets in a way you wanted.
  2. Protection for your family: A will prevents anyone from making any bogus claim and ensures that all the assets are safeguarded with your family or with only those people you have bequeath the assets in the will.
  3. Avoidance of disputes and legal hassles: By making an unambiguous and legally valid will, chances for disputes are few and far between. More than 3 crore cases are pending before courts of India and civil cases can hang around for up to 20 years incurring huge legal expenses. A will ensures hassle-free transfer of titles to beneficiaries of the will in the quickest possible way.
  4. Tax benefits: If a separate will for India is made by an NRI they can get some tax benefits.
  5. Tally of assets: In often cases, legal heirs are unaware of all the assets of the testator such as bank accounts and immovable property. So many assets are left without any track. In Indian banks alone thousands of cores are lying in dormant saving accounts which are unclaimed. While making a will one must list out all of the assets so that legal heirs could get an appropriate inventory for all the assets you are holding so that the chances of losing trace of any asset by legal heirs are reduced.

The apparent apprehension of every NRI is how the succession of their properties will transpire? And how they can get an upper hand in their estate planning? As a Non Resident there is a possibility that of owning and holding movable and immovable assets in the country where you are currently residing and in India as well. The problem with such a situation is that the will prepared by an NRI in India may not be considered valid in the country of their residence and similarly will prepared outside India may not be considered valid in India because succession laws are country-specific and depend on various factors such as:

  1. Country of domicile
  2. Resident country at the time of death
  3. Location of movable property
  4. Location of immovable property
  5. Forced heir-ship and community property laws of the domicile country

Making separate will for different counties may seem as the most sensible solution although in most cases making a separate will is not required. A composite unambiguous and legally sound will that lists out all the individual property or assets along with their respective country is sufficient additionally it is easier to prove the genuineness of a composite single will when compared to multiple wills. However, making a separate will for India can save taxes of inheritance as inheritance or estate tax was abolished in India in 1985. Moreover, a separate will ensures effortless transfer of titles to family members or other beneficiaries of the will. If the country where you are residence is governed by personnel laws such as Sharia laws in UAE. Then having a separate will for India assures distribution of your assets in India as per your personal laws. You can opt for making a composite or separate will after consulting estate lawyers as per your requirements and preferences.

A will executed outside India does not get automatically enforceable in India. To enforce a will executed outside India probate or letters of administration needs to be obtained. On the other hand separate Indian will shall be registered in India or attested by the office of Indian High Commission and the draft of the will should be in accordance with the Indian Succession Act 1925, Registration Act 1908 and other concerned laws.
As per The Indian Succession Act any person of sound mind who has attained majority can make a will. People who are deaf, dumb or blind cannot make a will. A will can be written in any language and should contain clear intentions of the testator. Leaving aside testator and beneficiaries a will should also have an executor who is responsible for execution of the property as mentioned in the will by the testator. An executor should be a person whom you trust and it is always recommended that the executor should be younger then the testator. After writing a will it is very probable that you might want to change or amend your will in future because of changing dynamics of your family and relationships or because of acquiring new movable or immovable properties.

A will is said to be a perfect epitome for a living document as it can be edited or updated anytime in any manner as per testator’s aspiration. Minor changes in a will can be made through a supplementary statement called “codicil in legalese” which is also required to be registered with the will. But in case you want to make major changes in the will then you need to rewrite the will and get it registered once again or if the previous will was not registered you can cancel it yourself by destroying it and writing a new will.

Any person can write a will himself as there is no prescribed format of writing a will however a will can only be considered valid if it is in accordance with registration, succession and other related laws of the concerned country. Therefore it is always recommended to consult a legal professional while making a will so that it is made in a full proof manner that cannot be set aside. Legal professionals and estate experts provide assistance in writing a will as per your wish while keeping local succession laws in mind. So, that your will is executed in the way you always wanted. Contact now to know more.

Consultation on Estate Planning

  • Cross-Jurisdictional Advice: Legal professionals provide guidance on how to manage estate planning across different countries, taking into account the succession laws in both the NRI’s country of residence and India. This includes advice on issues like forced heirship, community property laws, and the inheritance process in both countries.
  • Customizing Will Structures: Lawyers assist in determining whether the NRI needs a single composite will for all assets or a separate will for their assets in India, ensuring compliance with the relevant legal frameworks. In cases where multiple jurisdictions are involved, they can also provide advice on how to make sure that all properties are covered.

Drafting and Preparing Wills

  • Drafting Wills in Compliance with Laws: Legal professionals ensure that the will complies with both Indian law (Indian Succession Act, 1925) and the law of the country in which the NRI resides. They draft a clear, legally binding will that takes into account any personal laws that might apply, especially in the case of NRIs in countries governed by personal laws like Sharia law.
  • Asset Specificity: Lawyers ensure that the will is clear about the distribution of movable and immovable assets in both India and the NRI’s country of residence, making it easier to execute the will post-death.
  • Executor Selection: They help in choosing a trustworthy executor who can manage the estate and execute the will as per the NRI’s wishes. They ensure that the executor is legally empowered to manage both domestic and foreign assets.

Will Registration and Attestation

  • Indian Will Registration: Legal professionals assist in getting the will registered in India, ensuring that it is in compliance with the Indian Succession Act 1925 and the Registration Act 1908. They also help in ensuring that the will is properly attested by the Indian High Commission or consulate if the NRI resides outside India.
  • Foreign Will Enforcement: If the NRI has a will made outside India, legal professionals guide them through the probate process in India, helping to obtain letters of administration or probate to ensure the will is enforceable in India.

Tax Planning and Savings

  • Tax Benefits in India: Lawyers advise NRIs on how to structure their will to take advantage of the tax laws in India, such as the abolition of inheritance tax in 1985. They help in minimizing estate taxes and inheritance tax burdens in both India and the NRI’s country of residence.
  • Inheritance Tax Planning: They provide assistance in understanding how inheritance taxes work in both jurisdictions and provide strategies to minimize such liabilities, ensuring maximum benefit to beneficiaries.

Updating and Modifying the Will

  • Codicils for Minor Changes: Legal professionals assist NRIs in making amendments to their will by preparing a codicil, a supplementary document to update the will without requiring a complete rewrite. They ensure that the codicil is registered and legally valid.
  • Complete Will Rewriting: If major changes are needed (such as acquiring new assets or changing beneficiaries), legal professionals help rewrite and re-register the will, ensuring it is fully compliant with the latest legal standards.

Dispute Resolution and Prevention

  • Minimizing Family Disputes: Legal professionals ensure that the will is clear and unambiguous, reducing the chances of family disputes after the testator’s death. They include provisions to handle potential conflicts among beneficiaries and establish guidelines for resolving disputes.
  • Mediation and Arbitration: If disputes arise, legal firms can assist in resolving issues through mediation or arbitration, preventing long-drawn-out litigation.

Probate and Will Execution Services

  • Probate Assistance for Foreign Wills: Legal professionals help in obtaining probate for wills executed outside India and ensure that it is enforceable under Indian law. This includes guiding the NRI’s family through the probate process in India.
  • Enforcement of Will in Multiple Jurisdictions: They ensure that the executor can carry out the will’s terms both in India and abroad, by providing guidance on how to enforce the will across multiple legal systems.

Asset Inventory and Documentation

  • Comprehensive Asset Listing: Lawyers assist NRIs in compiling a detailed inventory of their assets, including both movable and immovable property, bank accounts, investments, and other financial assets. This ensures that nothing is overlooked and reduces the chances of unclaimed or dormant assets.
  • Securing Asset Transfer: They also ensure that assets, particularly immovable property, are properly transferred to the designated heirs in a manner that adheres to the relevant legal requirements of both India and the NRI’s country of residence.

Advice on Personal Laws and Forced Heirship

  • Personal Law Compliance: For NRIs in countries with personal law systems (like Sharia law), legal professionals provide guidance on how to structure the will to comply with these laws while ensuring that the testator’s wishes are respected.
  • Forced Heirship Laws: Lawyers can also advise NRIs on how forced heirship laws might affect the distribution of their estate, especially if they are residents of countries with strict inheritance rules (e.g., Gulf countries).

Comprehensive Estate Planning Solutions

  • Trust Formation and Asset Protection: Legal firms can also assist NRIs in setting up trusts or other legal structures to manage and protect assets for future generations, ensuring long-term estate planning.
  • Power of Attorney and Healthcare Directives: They can help NRIs establish a power of attorney or a healthcare directive, ensuring that someone trusted manages their affairs in the event of incapacity.