Probate and Cross-Border Wills for NRIs

Imagine you are an NRI living in the US and your parents live in India. They passed away and left their property, investments, and bank accounts in India to you. You assume that, under their will, you can simply get those assets. However, this is not how it works. To transfer and administer inherited Indian assets, you may need to establish the validity of the will and complete the applicable succession and asset-transfer procedures. Since Section 213 of the Indian Succession Act was omitted effective December 20, 2025, probate is no longer universally mandatory, although it may still be useful or requested in particular cases.

Confused? What is it and how does it help in your cross-border property dispute in India? This guide explains how cross-border wills interact with Indian succession procedures, when probate may be relevant, and how NRIs can plan the transfer of Indian assets more efficiently.

What Is a Cross-Border Will?

A cross-border will covers assets an individual holds in more than one country. It is also known as an international will. It includes multiple jurisdictions such as bank accounts, property, or investments held overseas. Each country imposes its own laws on assets you hold there. Because assets in different countries can be subject to different legal and procedural requirements, a cross-border will should be carefully coordinated with the laws applicable to each jurisdiction.

A single will covering assets in multiple jurisdictions can require additional legal and administrative steps because each country may apply its own rules.

• Each country has its own legal formats, witness requirements, and court process.
• An error or dispute in one jurisdiction can complicate the administration of the assets located there and, depending on how the wills are drafted, may also create issues in another jurisdiction. 
• Probate in each jurisdiction creates issues.

For instance, if you draft a will under U.S. law that also covers property in India, the will may still need to satisfy applicable Indian legal and procedural requirements when it is relied upon for the Indian property, which can make administration more complex.

A cross-border will can be valid and effective, but its administration may involve the laws and procedures of more than one jurisdiction. The key is to ensure that the will is properly drafted and coordinated with the rules applicable to each country's assets.

Why Should NRIs Have Separate Wills for Different Countries?

NRIs may consider separate, carefully coordinated wills for assets in different countries where this structure can simplify local estate administration. However, a single properly drafted will may also be appropriate depending on the assets, jurisdictions, and applicable laws.

• Separate, carefully coordinated wills can make it easier to identify which assets are governed by each document and may simplify administration in the relevant jurisdiction.
• Estate-administration procedures vary across jurisdictions. Separate wills may simplify local administration, but they do not automatically eliminate probate, court proceedings, or other succession requirements. 
• The main issues to consider when one document covers assets in multiple countries include:
• Additional legal requirements when relying on a foreign will
• Potential conflicts over which law applies
• Risk that certain provisions may not operate as intended in another jurisdiction
• This is useful because it corrects the common misconception that creating two wills automatically provides a tax advantage. For NRIs with assets in India and another country, estate-tax consequences should be analyzed separately based on the deceased's citizenship or domicile, asset location, estate value, applicable exemptions, and any relevant tax treaty. 

The right structure depends on the assets, jurisdictions, and applicable succession and estate-administration rules. The next question is how probate fits into this process for Indian assets. 

Understanding Probate Wills for NRIs with Indian Assets

Probate is a court-granted process through which a will is established for estate-administration purposes and the executor receives authority to administer the estate according to the will. A will executed outside India may still need to satisfy applicable Indian legal and procedural requirements when it is relied upon for Indian assets. Since Section 213 of the Indian Succession Act, 1925 was omitted with effect from December 20, 2025, probate is no longer universally mandatory under that provision. However, probate or another court order may still be relevant in particular circumstances, and banks, registries, housing societies, or other institutions may have their own documentation requirements. The ability to sell, transfer, rent, or otherwise deal with a particular asset may also depend on title records, co-ownership, registration requirements, and other applicable laws. 

The Repealing and Amending Act, 2025 omitted Section 213 of the Indian Succession Act, removing the statutory requirement under that provision that probate be obtained before certain rights as executor or legatee could be established. The change applies generally and is not limited to NRIs or to a particular religious community. 

Understanding the role of probate is only one part of cross-border inheritance. The next step is to consider how a will executed outside India can be used in connection with Indian assets.

How Are NRI Wills Executed and Validated Across Countries?

Getting a correct and recognized will across borders generally includes:

• Properly following the execution formalities required under the law applicable to the will. Depending on where and how the will is executed, this may involve witnessing, notarization, authentication, apostille, or other formalities.
• Documents executed or issued in one country may need apostille, authentication, attestation, notarization, or other formalities before they can be used in another country. The exact requirement depends on the country of origin, the country where the document will be used, and the applicable legal procedure.
• An NRI may appoint a properly executed Power of Attorney in India to assist with property, banking, succession, or court-related procedures where permitted. The exact authority of the POA holder depends on the wording of the POA and the requirements of the relevant court, bank, or authority.
• A foreign court's recognition of a will does not necessarily complete the procedure for Indian assets. Depending on the asset and applicable Indian law, additional Indian succession, court, registration, or institutional procedures may still be required.

If there is no will, the applicable succession process depends on the deceased's personal law, the type of asset, and the circumstances of the estate. Letters of administration may be relevant where court administration is required, while a succession certificate is primarily used for specified debts and securities. A succession certificate does not, by itself, transfer title to immovable property; property may require separate mutation, registration, or other transfer procedures. 

Property and other assets may require separate transfer, mutation, registration, or institutional procedures. To handle the process smoothly, it is essential to seek financial advice. 

So, this is how wills for NRIs with Indian assets are executed and validated across countries. Moving ahead, let's know why cross-border estate planning for NRIs is important. 

Why Do NRIs Need Cross-Border Estate Planning?

For an Indian resident holding only Indian assets, estate planning may involve fewer cross-border complications, although the applicable succession, property, tax, and asset-specific rules can still make the process complex. For NRIs, the same thing is divided into two legal systems: India and their country of residence, and managing it alone without proper planning becomes quite difficult. Additionally, Indian property is controlled by Indian succession law under the lex situs principle. Considering this, it often creates a few genuine complications for them, such as:

• Different laws may apply to assets located in different jurisdictions.
• The rules governing succession can vary depending on the deceased's personal law, religion, the type and location of the asset, and whether the person died testate or intestate. For example, Hindu intestate succession is governed by the Hindu Succession Act, 1956, while different rules may apply to other communities.
• Indian banks, land registries, and housing societies often have their own document requirements that cannot be satisfied by a foreign will automatically.

Without proper coordination, these differences can lead to additional documentation, procedural delays, or disputes over how the estate should be administered. Now, moving ahead, let's look at the common mistakes NRIs should avoid when creating cross-border wills.

Common Mistakes NRIs Should Avoid With Cross-Border Wills

Here are some common mistakes NRIs should avoid with cross-border wills:

• Failing to coordinate wills covering assets in different countries: If multiple wills are used, they should clearly identify the assets they cover and be drafted to avoid overlap or unintended revocation.
• Not considering which personal laws apply to your situation: Before drafting or coordinating wills, determine which succession rules may apply to the deceased, the assets, and the relevant jurisdictions. 
• Although registration of a will is generally optional, an unregistered will is not automatically invalid. However, proper execution, witnessing, preservation of the original document, and evidence of the testator's capacity can become important if the will is later challenged.
• For an NRI, inherited Indian real estate may involve both Indian succession and property laws and FEMA rules concerning ownership, transfer, and repatriation of funds. These are separate legal considerations and should be reviewed together. The will should identify Indian assets clearly enough to reduce ambiguity, ideally using relevant property details such as the address, title information, survey or registration details where appropriate. Receiving property by inheritance does not itself create a capital-gains tax liability. However, if the heir later sells the inherited property, capital gains may arise. The cost and holding period are generally determined with reference to the previous owner under the applicable tax rules. 
• Getting confused between a bank nominee and a legal heir. These are two different individuals, and one does not override the other. 
• Not considering the document authentication timelines. Relationship proofs, death certificates, and other documents often need proper notarization and attestation. Considering this, beginning the process late can create delays. 
• To repatriate inherited Indian assets outside India, NRIs must comply with FEMA and the applicable RBI rules. Eligible inherited assets may generally be remitted up to USD 1 million per financial year, subject to the applicable conditions, documentation, and tax compliance. Remittances above the prescribed limit generally require prior RBI approval. The applicable USD 1 million annual remittance facility can cover eligible inherited assets and sale proceeds of assets acquired by inheritance, subject to the FEMA conditions and documentation requirements. 
• As mentioned earlier, India does not have any inheritance tax. However, the country in which you currently reside may have one, and it may apply to your global assets. So plan your will accordingly.

Confused? Let's better understand it with an example.

Final Thoughts

For NRIs with assets in multiple countries, effective estate planning requires coordination between the succession, property, tax, FEMA, and estate-administration rules applicable to each jurisdiction. Depending on the assets and countries involved, separate wills may simplify local administration, while a single properly drafted will may also be appropriate. 

Further, if you need cross-border estate planning to navigate the complex issues of cross-border inheritance, connect with Savetaxs. The financial experts on our team help NRIs understand the tax and repatriation rules of India and foreign countries, and provide legal expertise for probate and wills for NRIs. So, reach out to us and get a clear image of what you should do as per your specific situation.