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Office No. 1403, Mayuresh Chambers,Navi Mumbai

NON – RESIDENTS OF INDIA AND PROBATION OF WILL

NRI Legal Services

Transferring property of an NRI with a foreign domicile, particularly when the property is located half in India and partially overseas, often raises uncomfortable issues. Is it necessary for a non-resident to write a Will or leave his property to natural succession? Must the NRI establish a joint, compound, or common Will including his property and assets in India and abroad? If so, when and where should such a Will be filed. Should the NRI designate several executors in various jurisdictions. Is it preferable to have separate wills for distinct assets in India and abroad? Should such dissimilar wills be filed separately in distinct jurisdictions. How should beneficiaries of NRIs’ inheritance rights be protected in India and abroad? Which law, Indian or foreign, governs the assets and possessions of non-resident Indians in other countries? The transfer of property is determined by the nature of the property, the individual’s domicile and, in certain cases, residency and citizenship. Your family may include parents, siblings, or relatives living in or outside India, and you may want to provide for some or all of them or even donate to a charity in your hometown, hometown city, or place of residency. You have many possibilities for doing this. To understand more about the issues revolving around this problem and to analyze the solutions it is mandated to approach the best lawyer in the field. Adv. Bindu Dubey is one of the finest Property law advocate in Mumbai who will aid the NRI client with all the necessary legalities and paperwork. 

To manage your estate, you must draught a Will that is lawful in both nations. You may need to create two distinct wills – one for your properties in India and another for your resident country’s properties. Here is all you need to know about drafting a Will that complies with both nations’ laws.

Part 1: Succession Laws are ‘Country-Specific’ and are determined by the following factors: Country of Domicile; Place of Residence at the Time of Death; Location of Immovable Property; Location of Movable Property; and whether the country of your domicile has mandatory heirship or community property laws.

Part 2: As an NRI, individuals are legally permitted to create a Separate Will in accordance with Indian law to protect your Indian assets. Therefore, why shouldn’t they make the most of it.  It may save you a fortune in inheritance taxes in your own country, since India has no inheritance or estate duty. It enables seamless and expedited execution/transfer of title to family members, since is no need to wait for procedures in your resident nation to conclude. If you live in a nation that adheres to Sharia law, an Indian Will enables you to transfer assets in India in accordance with your own religion/current laws.

Part 3: We highly advise you to draught a separate Will in accordance with Indian law if you possess any immovable property in India as an individual, member of a HUF, or as a share in ancestral property. You possess many moveable assets in India and overseas and are domiciled in India due to your wish to live permanently in India despite your dual citizenship.

Part 4: The following are the points to consider when preparing an India Will as an NRI:

  1. Transfer of Immovable Property in India: If you own immovable property in India as an owner, member of a HUF, or as a share in ancestral property, such property may be transferred only if your Will complies with Indian law requirements. Without a valid Will, such possessions will be inherited in an intestate (‘No-Will’) manner.
  2. Transfer of Immovable Property in the Resident Nation: If you possess immovable property in a country other than India, the rules of that country’s succession will apply.
  3. Transfer of Moveable Property: If you possess movable property (stocks, bank accounts, insurance policies, etc.), such property may be given in accordance with the Succession Law of the country in which the NRI resides at the time of death.
  4. Domicile: The term “domicile” should not be used interchangeably with “citizenship” or “residence.” Citizenship refers to a person’s affiliation with a specific country, while residency refers to the location of an NRI for a specified period of time in order to establish his status as a resident. On the other hand, domicile is a term that refers to both the reality of residing in a specific location and the intention to remain there continuously or eternally. 
  5. Forced Heirship: Certain nations have forced heirship laws that require a dead person’s wealth to transfer to his or her spouse, child, or parent. The remainder of the estate may be distributed according to the terms of a Will. A person cannot bequeath his whole estate in its entirety via a Will. This gives family members with a minimal level of protection that cannot be overridden by a Will. France, Saudi Arabia, Japan, Scotland, Islamic communities, Belgium, Cyprus, Germany, Italy, the Netherlands, Portugal, Spain, and Sweden are among the nations that have a compulsory heirship system.
  6. Community Property: Several nations have enacted legislation governing community property. It stipulates that the majority of property earned during the marriage (with the exception of gifts or inheritances) is jointly held by both spouses and is equally split upon divorce, annulment, or death. In the lack of explicit proof to the contrary, joint ownership is automatically assumed by law.

Probate is evidence of the Will, i.e., proof that one exists and is genuine. Probate, as defined in the Indian Succession Act, 1925, is a certified copy of the testator’s Will given to the executor with a court seal and authority to administer the testator’s assets. Probate is a court-granted power provided to the executor designated in the Will. It is necessary to carry out the deceased’s wishes in accordance with the Will. The court has a procedure for obtaining a statutory declaration called a “grant of probate.” This power is necessary for the executor to implement the Will. It is used to administer the deceased’s possessions in accordance with the terms of the Will. If the Will is formed in any of the regions subject to the Governor of Bengal’s authority and within the local general cases of the Madras and Bombay High Courts, If the Will is executed outside of such regions but concerns immovable property situated inside said areas. No probate is required in the case of Mohammedan wills.

According to section 213 of the Indian Succession Act, an executor or legatee (beneficiary) may only prove their claim under a Will in any Court if the Will has been probated. Only in the above-mentioned two instances is a probated Will needed.

Probate Procedures:The executor makes the application for probate. The application is submitted in the county court that has jurisdiction over the property’s location. A higher court or a lower court may award probate, depending on the value of the immovable assets.

Including the application, the petitioner must provide the following documents:

The fact of the testator’s demise Death date, this is the final Will, which was properly performed (a statement to the effect that the testator signed the Will in the presence of two witnesses)Executor’s share Probate is a legal document that is printed on stamp paper. The applicant is required to provide the stamp paper. The stamped sheet is worth the same as the required court cost.Once the application is submitted, notification is sent to the deceased’s next of kin; furthermore, a public notice is published for the broader public.The notice is being published to allow for the filing of objections to the award of probate in favor of the executor designated in the Will. Probate is granted if no objections are raised. If there are objections, the application is disputed. The parties provide evidence, and the matter is determined in accordance with that evidence.

There is no time restriction on when a will must be probated. However, the needless delay must be justified. Probate requires the presence of a valid Will and certain additional papers to support the claim. It is prudent to get prompt legal counsel in this regard. Adv. Bindu Dubey is one of the finest lawyers for NRI property law. She will aid the clients in their issues and paperwork. 

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