Can an NRI make a Will in India?

NRIs are likely to have assets in both India as well as their country of residence. The question of how their will can be set up in India is sure to come up. Can an NRI make a will in India? This article explains the details of this question.

Succession Laws 

Succession Laws depend on the country and several other factors:

• Country of residence
• Location of resident at the time of death
• Location of properties that are immovable
• Location of properties that are movable
• If your country of residence has heir-ship laws that are forced or Community Property laws.

Separate Indian Will is Advised for NRIs 

• Indian laws legally allow NRIs to form a separate will in order to cover assets in India. 
• This can save you large inheritance taxation in your country of residence as India has no inheritance tax or estate duty.
• It can speed up the process of activities such as transferring the title of assets to your family. You will have to wait for things to process in your country of residence. 
• If your country of residence follows Sharia law, an Indian will enables you to control the distribution of your assets in India, according to your religion and the prevailing laws

Further Reasons for a Separate Indian Will 

You are strongly urged to get a separate will if:

• You are the owner of immovable Indian property such as a flat, shop, land, building, bungalow, kothi, etc in the capacity of owner, member of HUF, or as a share in ancestral property. 
• You are the owner of numerous movable properties in India and abroad. India is your country of residence, and you wish to stay permanently in India,  although you are a citizen of another country.

Notable Points for Indian Will as an NRI

The Transfer of Immovable Property in India 

If you have an immovable property in India in the capacity of an owner, a member of HUF or as a share in ancestral property, then this property can only be transferred to somebody if your will satisfies Indian laws. If such a will does not exist, then this property will be passed on according to intestate (‘No-Will’).

Transfer of Immovable Property in Country of Residence

If you have an immovable property in a country outside India, the laws of that country will determine the laws of succession. 

Transfer of Movable Property

If you have movable property such as shares, bank accounts, insurance policies etc, these properties can be passed on according to succession laws of the country where the NRI is residing when they die.

Domicile vs Citizenship or Residency 

Citizenship: This is when an individual is a citizen of a particular country

Residency: This is when an NRI lives in a country outside India for a certain period of time

Domicile: This is when the person resides in a particular country and wishes to live there indefinitely or permanently. There are two types of domicile:

Domicile of origin: Domicile of origin is one that one is born with. 

Domicile of choice: This is when an individual has a self-acquired domicile that they choose over their previous domicile. This could be a domicile of origin or a domicile they have chosen. In order to choose your own domicile, you have to be legally competent. Domicile can be preserved after leaving if the individual stays connected and does not demonstrate the intention to leave permanently. 

Forced Heirship

Certain countries have heirship rules that are enforced. In these cases, some portion of the deceased’s estate must be left to their spouse, child or parent. The rest of the estate can be disposed according to what is written in a will. The entire property cannot be disposed according to a will.  This is enforced in order to protect family members. Countries, where this is enforced, are France, Saudi Arabia, Japan, Scotland, Islamic communities, Belgium, Cyprus, Germany, Italy, the Netherlands, Portugal, Spain, and Sweden.

Community Property

There are countries with rules about community property. This entails that a large portion of property acquired at the time of marriage, not counting gifts and inheritance, must be co-owned by both spouses. It must also be split equally at the time of divorce, annulment, or death. Co-ownership is assumed unless contrary evidence is provided. 9 states in the United States are community property states. These are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. 

Concluding Points 

 A non-Muslim NRI creating a will outside India for properties that are located in India must know:

• Your Indian will is only able to cover immovable properties situated in India.
• If you are residing in India at the time of your death or if the country of your residence does not have any testamentary restrictions, then your movable properties can be included in your will. 
• Registration of a will is not mandatory according to Indian laws. A will that is:

a. printed on plain paper

b. is signed by you

c. is attested by two witnesses (along with passport number or Citizen ID) 

is a valid will whether or not it is prepared online or with the guidance of a legal professional.

It is recommended that you register your will with the Indian embassy in the country where you reside. You can also have it notarized. This will complete your legal will and it will not be necessary to come to India for will signing or for registration. 

To ask any questions related to the rights of NRIs, PIOs, and OCIs, you can download SBNRI App from the Google Play Store or App Store. You can also use the SBNRI app for investment in stock market/ mutual funds, NRI account opening, tax filing, etc. To ask any questions, click on the button below. Also, visit our blog and YouTube channel for more details. 

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