NRI Wills explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
NRI wills can be made in India or abroad, and where assets sit in more than one country separate wills are ideal. A foreign will is not automatically enforced in India — obtain probate abroad, apostille it, then apply here for ancillary probate.
What NRI wills can cover
A Non-Resident Indian or Overseas Citizen of India can create a will either in India or overseas, for different assets — immovable properties and movable properties, bank account balances, shares, mutual funds, bonds, other financial instruments, vehicles, jewellery and any other personal belongings or valuables.
Where the NRI has assets located in more than one country, it would be ideal to prepare separate wills, to avoid conflicts, difficulty in execution and problems of recognition, given the varied succession laws of the respective countries. The handbook is careful that this is a recommendation, not a rule: when assets are held in different parts of the world it is not mandatory to have separate wills, but if he has, it could be helpful. So separate NRI wills are a planning choice, not a legal requirement.
Three bodies of law have to be taken into account when drafting NRI wills:
- the Indian Succession Act, 1925;
- the Registration Act, as applicable to the Indian State where the property is located or where the will is made; and
- the Foreign Exchange Management Act, 1999.
And a will for Indian assets can be drafted or written by an NRI anywhere, either in India or abroad.
NRI wills made abroad — the three steps to enforce them here
When an NRI makes a will while outside India — a foreign will — it is necessary to comply with the laws of the country where the will is being made. If that foreign will captures assets based in India, the will may not be automatically enforced in India. The beneficiary or executor must then:
- Probate. Obtain probate from the court or authority of the relevant foreign country. Probate is a copy of the will certified through a legal process, involving determination of the authenticity of the will in a court of law.
- Authenticate. After obtaining the probated copy, authenticate it by way of an apostille — a legal certification that makes a document from one country valid for use in another — or in any other manner required by the relevant country.
- Submit. Submit the authenticated probate to the relevant court in India to apply for "ancillary probate" or "letters of administration".
The handbook attaches a condition to step 2 that determines whether the route works at all: it is essential that both countries should be party to the Hague Convention of 5 October 1961, "Abolishing the Requirement of Legalisation for Foreign Public Documents".
Where the country of residence is not a party, the apostille is unavailable and the document has to be legalised by the older consular route instead — which is what the handbook's phrase "or any other manner as required by the relevant country" is pointing at.
The practical step at the drafting stage, therefore, is to check the client's country of residence against the Convention's membership before choosing where the will is made. Where it is not a party, the case for a separate Indian will for Indian assets becomes much stronger — a will made in India for Indian property avoids the entire chain of foreign probate, legalisation and ancillary probate.
When probate is mandatory for NRI wills and others
The handbook notes that the Indian Succession Act, 1925 only provides for certain circumstances where probate of the will is mandatory, and that one may consider probating the will in any event to secure the title and ensure no ambiguity.
It lists three situations in which probate is mandatory:
- where the will is made in a foreign country and the executor is trying to enforce the document in India for assets located within the country;
- where the testator is a Hindu, Buddhist, Sikh, Jain or Parsi making a will in Kolkata, Chennai or Mumbai; or
- where the testator holds and bequeaths any immovable property within the limits of one of those three cities.
The list is given without citation to the section and names Parsis alongside the other four communities. Read the relevant provisions of the Act directly before advising that probate is or is not compulsory.
FEMA and immovable property in NRI wills
| Question | Position under the handbook |
|---|---|
| Bequeathing a flat to a child resident in India | No restrictions |
| Bequeathing a flat to a child who is an NRI or OCI | Permitted provided the flat was acquired under the foreign exchange law in force at the time of acquisition |
| Flats acquired while the testator was an Indian resident | No FEMA restrictions on bequeathing to either child |
| An NRI inheriting immovable property from resident parents | Permitted — an NRI can acquire any immovable property in India by way of inheritance from a person resident in India |
The handbook cites Master Direction number 12/2015-16, "Acquisition or Transfer of Immovable Property under Foreign Exchange Management Act, 1999", as updated on 1 September 2022. Master Directions are amended from time to time, so check the current version before advising.
Movable property and the domicile rule
Movable property may include cash, paintings, jewellery, electronic devices and vehicles. Current foreign exchange laws do not have any specific provisions or restrictions on the inheritance of movable assets in India.
But under the Indian Succession Act, 1925, bequeathing of movable assets is governed by the laws of the country of domicile at the time of demise.
The handbook's illustration is the clearest statement of the rule in the chapter, and it cuts across the instinct to apply the law of the place where each asset sits.
An NRI having his domicile in India dies in France, leaving movable property in France, India and the United States. The succession to all such movable property will be regulated by the laws of India.
Two points follow for the drafting of NRI wills. First, the connecting factor is domicile, not residence or citizenship — an NRI who has lived abroad for thirty years may still be domiciled in India, and domicile is notoriously hard to shed. Second, the rule applies to movables everywhere, which is precisely why separate country wills can conflict: an India-domiciled testator's foreign bank accounts are governed by Indian succession law even though a foreign will disposes of them.
The handbook adds that personal laws — the Indian laws applicable to the NRI based on his religion — may bring additional factors into play for movable assets owned in India, so "it is always a good idea to have all important bases covered".
Nominee and heir are not the same — the point NRI wills must settle
The distinction closes the chapter, and it is the one that causes most family disputes over NRI estates.
An heir is an individual entitled to succeed to the property of a deceased individual, in accordance with the will or the applicable personal succession laws.
A nominee is an individual who only holds the legal title of the property for the benefit of others. Nomination does not confer any beneficial interest in the property to the nominee. Any property received by a nominee can be claimed by the heirs of the deceased under the applicable laws of succession, or by the beneficiaries provided in the will.
The handbook makes the same point among the benefits of a will: one of the primary functions of a will is to differentiate between the nominee and the beneficiary — the nominee holds the property temporarily until it is distributed according to the will, while the beneficiary ultimately receives it.
Practical checklist for NRI wills
- Establish the client's domicile, not merely residence or citizenship.
- Prepare separate NRI wills where assets sit in more than one country.
- Check the country of residence against the Hague Apostille Convention membership.
- Where it is not a party, prefer an Indian will for Indian assets.
- Confirm how each Indian property was acquired, and under which FEMA regime.
- Read the current Master Direction, not the 2022 version cited.
- Verify whether probate is compulsory from the Act itself.
- Reconcile every nomination against the will, and explain that a nominee is not an heir.
Common mistakes in NRI wills
- Assuming residence abroad changes the law governing movables.
- Relying on a foreign will to pass Indian immovable property without ancillary probate.
- Promising an apostille route for a non-Convention country.
- Letting separate NRI wills overlap and revoke each other.
- Treating a nomination as a testamentary disposition.
- Quoting a FEMA Master Direction without checking its current version.