Most Non-Resident Indians work hard to secure a comfortable life for their children abroad, diligently drafting a Last Will and Testament with a lawyer in their host country. They assume that adding a single sentence—"and all my properties located in India"—is enough to secure their Indian ancestral assets.
From a strictly theoretical legal standpoint, this is valid. From a practical, boots-on-the-ground procedural standpoint in India, it is a disaster that will cost your heirs years of litigation, court fees, and travel.
1. The Myth of the "Global Will"
When you pass away in the US/UK/UAE with a "global will" covering both local and Indian assets, the executor of your estate must first probate that Will in your host country court.
Once the foreign probate order is received, your heirs cannot simply take that piece of paper to an Indian bank or Tahsildar to transfer assets. Indian authorities—banks, mutual fund houses, and property registrars—will refuse to recognize a foreign court order natively.
2. The Multi-Jurisdictional Probate Nightmare
To enforce a foreign Will in India, your heirs must go through a process called "Ancillary Probate" (if the Will was issued in a reciprocating territory like the UK) or start a completely fresh civil suit for a Succession Certificate in an Indian court based on the foreign authenticated Will (if from a non-reciprocating territory like the USA).
This process involves translating documents, securing consular attestations, publishing public notices in Indian newspapers, and dealing with an overburdened Indian civil court system.
Expect this process to take a minimum of 18 months, often stretching to 3-5 years if any relative raises an objection.
3. The Solution: Concurrent Wills
The cleanest, most efficient legal structure is to create Concurrent Wills (also known as Situs Wills).
This means you draft one Will specifically governed by the laws of your host country dealing exclusively with assets in that country. You instruct an Indian lawyer to draft a second, separate Will governed by the Indian Succession Act, 1925, dealing exclusively with your properties and bank accounts in India.
Structural Strategy Tip
Crucial Formatting: When drafting the second Will, ensure the first clause explicitly states it does not revoke the previous foreign Will. A standard boilerplate revocation clause ("I hereby revoke all former Wills...") in an Indian template can accidentally invalidate your million-dollar foreign estate plan.
Map your structural compliance flow4. Registration: Is it Mandatory?
Under the Indian Registration Act, 1908, the registration of a Will is optional. A Will drafted on plain paper, signed by you, and attested by two witnesses is perfectly legally valid.
However, for NRIs, we strongly advise against leaving an unregistered Will. An unregistered Will is highly susceptible to challenges from disgruntled relatives alleging forgery, coercion, or lack of mental capacity.
Registering the Will at the Sub-Registrar's office (which usually requires a video recording of the testator acknowledging the document) provides a massive layer of evidentiary protection. If you cannot travel to India to register it, you can execute it before a notary in your host country or before an officer at the Indian Embassy.
5. Essential Clauses for an Indian Will
An effectively drafted India-specific Will should include:
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Geographical Limitation "This Will is restricted exclusively to my assets, both movable and immovable, located within the territorial jurisdiction of the Republic of India."
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Non-Revocation Clause "This Will shall operate concurrently with and does not revoke any Will executed by me regarding my assets located in [Foreign Country]."
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Appointment of an Indian Executor Appoint a trusted person residing in India to administer the estate. Appointing your NRI son in San Francisco to execute Indian property transfers will cause immense logistical headaches.
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Key Takeaways
- Do not rely on a single, global Will drafted abroad to cover Indian assets.
- Ancillary probate in India based on a foreign Will can take 2-5 years.
- Draft a separate, concurrent India-specific Will and ensure it explicitly does not revoke your foreign Will.