Indians today are more mobile than ever before, migrating to most parts of the world. Asset ownership across the borders is also becoming more common. And with that comes a set of new challenges. Should Non Resident Indians (NRIs) make a separate Will for overseas properties? What is the right way to make a Will? What happens if he dies intestate, that is, without making a Will? How should NRIs handle cross border legal issues?
Should NRIs make a Will?
Making a Will is not a legally mandated requirement. However, if you die without leaving a Will behind, your family will have to follow the ‘laws of intestate succession’ in deciding how to split your assets. It is a misconception to believe that all the estate is automatically passed on to the spouse.
“”In India, Hindus, Sikhs and Jains are covered by the Hindu Succession Act 1956. With the exception of Muslims, everyone else is governed by the Indian Succession Act 1925. Muslims are largely governed by the Muslim personal law,”
If any person dies intestate, which is without a Will, the law of natural succession will prevail. According to the law of natural succession a person’s property shall devolve equally on all his legal heirs who are primarily parents, wife and children as Class 1 heirs and if he has no Class 1 then Class 2 which are immediate blood relation and so on, according to specified list. In Muslim law not more than 1/3 of the property can be bequeathed by way of testamentary powers. The rest is devolved equally on all the lawful legal heirs. So a Will under the Muslim law is applicable to only 1/3 of the property after the payments of his funeral, debts and other charges”
Division of assets without presence of a Will is an expensive business as your family would have to hire the services of a lawyer and all the costs will be incurred out of your estate. So in effect, your family will get the share minus the expenses incurred
Therefore, it is preferable to make a Will because it leaves you to decide how your wealth is used.
Should NRIs make a Will if they already have nominations in place?
In the eyes of law, a nominee is a trustee and he need not necessarily be a beneficiary to a Will. The nominee is merely a caretaker and the right to the property passes by Will till the beneficiary attains majority or if there is no Will, under the laws of succession.
This means that if there is a Will, then the nominee will only hold the assets as a caretaker trustee for the beneficiary. The nominee will be legally bound to transfer the nominated property to the beneficiary of the Will. If there is no Will, he will have to transfer to the legal heirs. So ideally, if a Will is made, it would be better to name the nominee as the beneficiary to ensure that the distribution is smooth and efficient.
What is the process of making a Will?
Remember these basic points while making a Will in India: There is no prescribed form for a Will. It only needs to be properly signed and attested. The Will can be in any language. Two witnesses must attest a Will; one preferably a doctor. The witnesses should sign in the presence of each other and the person making the Will. The Will should provide for the appointment of executors, though not mandatory. In India, the registration of Wills is not compulsory.
Step 1: A Will can be made on a simple piece of paper which can then be notarized with two witnesses while the NRI is still abroad. This would work if all the legal heirs are being given the property in equal shares and the possibility of any one party challenging the Will is low.
Step 2: On his/her next trip to India the Will should be registered with the department of registrations where the property/s are situated. This is particularly important if the line of succession is being cut and any one of the legal heirs is being deprived of their share. For instance, if any one of the Class 1 legal heir is being deprived of their right to inheritance. The person has to be physically present in front of registrar to get a Will registered as photographs of the person and signatures are verified.
“It’s advisable that a Will is made in India with two local witnesses so that if challenged they can be produced easily. Also, do note that all Wills are subject to challenge, it’s just that a registered Will is a much stronger document to hold against any challenge.”
Should NRIs make separate Wills for overseas properties?
“A Will for the Indian properties should be made separately and should never be clubbed with the properties overseas,”
“You can make a single Will in your country of residence and an ancillary probate in the country where the property is situated. However, there could be challenges. For instance, a foreign executed Will must qualify in India and meet the provisions of the local religious law. Similarly, a Will executed in India must qualify in the foreign country. Procedurally, therefore, in many situations, it can be better to make two separate Wills.”
