• HDFC
• 13 Jun 2018
• e Will

HDFC, Tester

As an NRI, you are probably holding movable and/or immovable properties in the country where you are residing as well as in India. So technically, for estate planning, you need to prepare a Will which is legal in both countries. You may have to prepare two separate Wills - one Will for your properties in India and the other Will for properties in your resident country. Here’s everything you need to know about preparing a Will that is line with laws of both the countries.

 

Part 1:

 

Succession Laws are ‘Country-specific’ and depend upon:

 

• Country of your Domicile;
• Place of resident when died;
• Location of immovable properties;
• Location of Movable properties; and
• Whether country of your domicile has forced Heir-ship laws or Community Property laws.

 

Part 2:

 

Why a Separate Indian WILL is advisable for NRIs:

 

• As an NRI, you are legally allowed to make a Separate Will as per India laws to cover assets in India. So why not make the best of this?
• It can save huge inheritance taxes in your country of residence since there is no inheritance tax or estate duty in India.
• It allows smooth and faster execution/transfer of title of assets to the family as there is no need to wait for proceedings to end in your resident country.
• If you reside in a country that follows Sharia laws, having an Indian Will allows you to distribute assets in India as per your personal religion/prevailing laws. 

Part 3:

 

We strongly recommend you to prepare a separate Will as per Indian laws if:

• You own any immovable property in India (like flat, shop, land, building, bungalow, Kothi etc.) as owner, member of HUF or as share in ancestral property.
• You own many movable properties in India and abroad and you are domiciled in India as you desire to stay permanently in India, though you hold citizenship of another country.

Part 4:

 

These are the things you should note when you prepare an India Will as an NRI:

1. Transfer of Immovable Property in India: If you hold any immovable property in India as an owner, member of HUF or as share in ancestral property, such property can be transferred to someone else only if your Will meets the requirements of the Indian laws. In the absence of a proper Will, such properties will be bequeathed as per intestate (‘No-Will’) situation.
2. Transfer of Immovable Property in Resident Country: If you own any immovable property in a country other than India, the laws of Succession applicable in that country will apply.
3. Transfer of Movable Property: If you own any movable property (shares, bank account, insurance policies etc.), such properties can be bequeathed as per Succession Law of the country where NRI is domiciled at the time of death.
4. Domicile: Domicile should not be confused with citizenship or residency. Citizenship means that a person belongs to a particular country while Residency refers to where the NRI stays for a prescribed time to determine his status as a resident. Domicile, on the other hand, is a combination of the fact of residence in a particular place and the desire to reside there permanently or indefinitely. Domicile is of two types –

• Domicile of origin: A domicile of origin is the one with which a person is born.
• Domicile of choice: A domicile of choice is a self-acquired domicile which a person chooses to replace his/her former domicile. It may be either a domicile of origin or domicile of choice. Only a legally competent person can choose his/her domicile. A person can remain domiciled in a jurisdiction even after leaving if he has maintained sufficient links with that jurisdiction or has not displayed an intention to leave permanently.

5. Forced Heir-ship: Some countries have forced heir-ship rules under which a certain portion of the estate of the deceased must pass to his/her spouse, child or parent. The remaining portion of the estate can be disposed under a Will. A person cannot dispose of his entire 100% estate through a Will. This provides a minimum protection to family members that cannot be defeated by a Will. Some countries where forced heirship rule applies are France, Saudi Arabia, Japan, Scotland, Islamic communities, Belgium, Cyprus, Germany, Italy, the Netherlands, Portugal, Spain, and Sweden.
6. Community Property: Some countries also have rules for community property. It provides that most property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided equally upon divorce, annulment, or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion. In the USA there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

 

Part 5:

 

If you are a non-Muslim NRI preparing a Will outside India for properties situated in India, here’s what you need to know:

• Your Indian Will can cover only immovable properties situated in India.
• If you are domiciled in India at the time of demise or if the country of your domicile does not impose any testamentary restrictions, your movable properties can be included under your Will. 
• As per Indian laws registration of a Will is not compulsory. So a Will printed on a plain paper, signed by you and attested by two witnesses (along with Passport No. or Citizen ID) is a valid Will irrespective of whether it is prepared online or with the help of a legal professional.

 

For better and smooth execution we recommend you to register your Will with the Indian Embassy in the country of your resident as per process generally mentioned on respective country’s Indian Embassy website. Alternatively, it may be notarized. Once you complete these procedures, your legal Will is completed and you won’t be required to visit India for Will signing or registration.