Wills for those living overseas with assets in India

Wills for those living overseas with assets in India

A Will is a record through which an individual arranges for who inherits his/her property after their death. Considering if your assets are located in different nations and across investment options, a Will is required in each country where assets are located and creation of one in compliance with legal requirements means your loved ones and beneficiaries will not have an issue or there will be less scope for arguments and disputing your last wishes after your death. So also with any change of circumstances like divorce, remarriage, new property, birth of children, beneficiary or executor dying before you or adding a charity, a will may need to be updated through a codicil.

There are no limits on the number of codicils you can prepare. For major changes, it is better to create a new will that revokes the earlier one.  Special care must be taken and an expert used if you share the title with someone, not your spouse or civil partner, you want to leave assets to a dependant who cannot take care of himself/herself, you have several family members who may make a claim such as a second spouse or children from another marriage and you have a business.

As an NRI (a Non-Resident Indian), if you hold movable and/or immovable properties in the country where you are residing and in India, you need to prepare a legal Will in both countries. Just having nominees on bank accounts and investments is not sufficient as a nominee is a trustee and need not necessarily be a beneficiary.

A Will in India must be drafted, keeping in mind the succession law that applies to you according to your religion. While the Hindu Succession Act covers Hinduism, Sikhism, Jainism, and Buddhism; succession laws for Muslims and Christians are different.

As an NRI, these steps would be necessary:

  1. Make a list of your assets, beneficiaries (those you wish your assets to pass to after your demise), get a statement of good mental health from a doctor you know and choose an executor and family member for custody of minor children, who is not very old , whom you can trust and who is happy to be one in case of attending court during probate or a disputed will.
  2. Get a specialist to properly draft the Will and get it signed.
  3. Have two witnesses sign in confirmation of your signature.
  4. It is preferable but not compulsory to get an attestation from a Notary Public.
  5. Get an Apostille stamp from the Foreign Commonwealth Office in the U.K.
  6. Can get counter attestation via consular services offered by VFS on behalf of the High Commission of India.
  7. Keep the will in a safe place, your solicitor, bank a company that stores wills or the London probate Service and inform beneficiaries of the place.

Here are some other important aspects you might need to know about preparing a Will that aligns with both countries’ laws.

a) Transfer of Immovable Property in India: If you own immovable property in India as an owner or shareholder of ancestral property, this property can only be transferred to someone else if your Will meets the requirements of Indian law. In the absence of a proper Will, these properties are bequeathed according to the No-Will intestacy situation.

b) Transfer of Immovable Property in Resident Country: If you own any immovable property in a country other than India, the Laws of Succession and intestacy applicable in that country will apply.

c) Transfer of Movable Property: If you have movable assets (shares, bank account, insurance, etc.), such assets may be bequeathed according to the inheritance law of the country where NRI is domiciled at the time of death.

d) Domicile: Domicile should not be confused with citizenship or residency. Citizenship means that a person belongs to a particular country, while residency refers to the place where the NRI resides for a prescribed period of time to determine their status as a resident. On the other hand, the domicile is a combination of living in a particular place and the wish to reside there permanently or indefinitely and to prove this becomes more complex.

e) Coercive Inheritance: In some countries, there are coercive inheritance rules which require a certain part of the testator’s estate to pass to his or her spouse, child, or parent. The remaining part of the estate can be bequeathed through a Will. A person cannot have 100% of his or her entire estate in a Will, specially in relation to ancestral property eg in Goa, India, Portuguese laws and probate procedures differ from the rest of India. This provides a minimum level of protection for family members who cannot be left out by a Will. Some countries where this rule applies are Scotland, France, Germany, Belgium, Portugal, Italy, Spain, Sweden, Netherlands, Japan, and several Islamic countries.

f) Community Ownership: In some countries, there are also rules on community ownership. It provides that most of the property acquired during the marriage belongs to both spouses jointly and is divided equally on divorce, annulment, or death. These types of rules are most common in the USA and South Africa.

g) Advantages of having a Separate Will: As mentioned earlier, an NRI can prepare a single multi-jurisdictional Will or separate Will for Indian properties. Nevertheless, it is always better to prepare a separate Will as per Indian laws. Mostly because-

  • A separate Will Ensures validity as it considers the local and religious laws on matters like mandatory succession or forced heirship rules.
  • A Will’s Administration can proceed without delay because a separate Will can usually be directly submitted to probate without waiting for a probated will in the country where the deceased resided.
  • A separate Will can incorporate local language and local formalities. Local language avoids a need for translation and interpretation problems when it is time for the Will to be used in the jurisdiction.

Registering a Will is not always a necessity. It would be valid even otherwise. However, to ward off any legal complexities in the future, one is advised to register it. Distribution of wealth would be a personal choice; however, it would be best to take assistance from experts when creating a Will. Since assets are located in different countries, certain complexities like ongoing title disputes, unfair division you might be aware of , wrong choice of executor or two witnesses (one preferably a doctor), forgetting permissions and issues around custody of minor children, lack of medical letter on mental capacity and errors in the Will, could also lead to your successor’s having legal complications in getting their inheritance and also additional legal costs.

Hence prevention is better than cure and the earlier you make your will once you have assets in your name or children, the better and safer it is. So also effective tax planning through trusts and inheritance tax advice may be possible with experts and save a lot of money for your beneficiaries.

For assistance with wills, lasting powers of attorney and probate matters for England, Wales and India, contact help@bizlawuk.co.uk or WhatsApp us on 07583452230. Do visit www.bizlawuk.co.uk to find out more about how we can help you in other aspects.

Reina D'costa

Dual qualified, experienced, practical and proactive solicitor. Founder of Bizlaw UK, a new model legal service consultancy.