A "Will" is a written legal document where a person specifies how their assets and property will be distributed after their demise.
The one who makes the Will is called a 'testator'. and the people who receive assets from the Will are called 'legatees' or 'beneficiaries'. Additionally, you can authorize a person to give effect to the Will by carrying out your wishes, and such a person is called the 'executor' of the Will.
You can register a Will either in India or while abroad, but you need to comply with the Indian Succession Act, 1925. It includes the Will being in writing, and signed by he testator in the presence of two witnesses.
Although registering a Will is optional for NRIs but it is strongly advisable to avoid potential disputes and simplify asset transfers. In this blog, we will walk you through everything you need to know about an NRI seeking to register a Will in India.
Key Takeaways
- A 'Will' is a written legal document that specifies how a person's assets and property will be distributed after their demise.
- NRIs can register a Will in India for the assets situated in India. The testator is someone who makes the Will, and beneficiaries are those who receive assets as per the Will.
- Registering a Will is completely optional for NRIs, but it's advised to prevent future disputes.
- You can register a Will either in India or from abroad, while complying with the Indian Succession Act, 1925.
Why is a Will Important for NRIs?
If you are an NRI and you own a property or investments in India, a Will ensures that your assets are distributed as per your wishes after your demise. Here are some reasons why an NRI should draft a Will:
- Clarity about Inheritance: It helps in avoiding any confusion or conflict among legal heirs.
- Quick Asset Transfer: Beneficiaries can easily claim assets without facing any delays.
- Peace of Mind: Knowing that your Indian assets are secured for your family provides you with peace of mind.
- Prevent Legal Issues: You might face lengthy court procedures under succession laws in the absence of a Will.
For Example
Suppose you are an NRI owning an apartment in Mumbai and mutual funds in India, but you stay in the US. Then, a 'Will' registered for your property in India will ensure that your beneficiaries can easily claim it, without navigating any complex legal approvals later.
Is it Mandatory to Register a Will in India for NRIs?
No, registering a Will is not a mandatory requirement; it's completely optional. However, it's highly advisable to register a Will to prevent future disputes and ensure a smooth transfer of assets to the beneficiaries.
How to Register a Will in India for NRIs?
Follow the steps mentioned below to register a Will in India as an NRI:
Step 1: Draft a Will: Draft a clear Will mentioning your assets and intended beneficiaries. Ensure to state clear and specific details about each asset.
Step 2: Appoint an Executor: Choose a trustworthy executor, ideally someone who is in India and has good knowledge about the local legal system. They will be liable to handle the distribution of your assets as per your wishes.
Step 3: Signature of Witness: Select two witnesses who must sign in the testator's presence. Beneficiaries of the Will cannot be the witnesses.
Step 4: Register Your Will: It's advised to register the Will by visiting the sub-registrar's office with your original Will, ID proof, and address proof. You will receive an official certificate of registration, provided you paid a nominal fee.
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What are the Documents Required for Will Registration for NRIs?
You need the following documents for registering a Will in India:
- Overseas and Indian address proof.
- PAN and Aadhaar card, if available.
- Photographs of the testator and witnesses.
- A valid passport to prove your NRI status.
- If registering through a representative, a Power of Attorney (PoA).
What are the Benefits of Will Registration for an NRI?
Although not mandatory, registering a Will with the relevant authorities offers a wide range of benefits to the NRI. Here are some of the key benefits that the testator and the beneficiaries can enjoy:
- Restricted Access: Although it's officially recorded, it's not a public document. Only the testator and beneficiaries get access to it.
- Safe Custody: A registered will ensure safety from risks like loss, theft, destruction, or tampering. The authorities maintain an official copy of the document, serving as a backup, ensuring no alteration or misplacement.
- Ensuring Authenticity: Registering your Will with the local sub-registrar ensures the document's authenticity. It creates an official record of the Will's existence, making it more credible.
If your original Will is lost or destroyed, the executor or beneficiaries can request a copy from the sub-registrar's office after completing the required formalities and paying the fee.
What are Some Key Points to Consider When Writing a Will in India?
An NRI must consider the table below while drafting a Will in India to ensure compliance and a smooth process:
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Eligibility
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The testator drafting the Will must be of sound mind and at least 18 years old.
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Assets
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List out and clearly describe each asset that you want to pass on.
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Beneficiaries
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Clearly mention the full name along with your relationship with each beneficiary. If you wish to split the asset amongst multiple beneficiaries, mention the percentage share of each legatee.
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Format and Language
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As per the Indian law, there is no specific format or language to draft a Will. Simply express your intent clearly in a language that you and your loved ones can understand.
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Signature and Witnesses
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- The testator must sign the Will in the presence of two or more witnesses, and witnesses must also sign the document.
- According to the current laws, you can authorize someone else to sign the Will on your behalf in your presence if the testator is physically not able to do so.
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Stamp Duty and Notarisation
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- You don't need to pay stamp duty on a Will.
- A Will signed in India does not need to be notarised.
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Cancellation
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The testator can cancel the Will by drafting a document cancelling the Will similarly how it was made.
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Alteration
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The Will can be modified by the testator by drafting a document called a codicil.
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Probate
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A probate is the legal process of verifying the authenticity of a Will after the testator's death. It's certified through a legal process, and it's not mandatory for all Wills.
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To Conclude
While it's not mandatory to register a Will in India, it offers significant benefits that can help simplify asset transfer and reduce potential disputes. Dying without a Will in India leads to intestate succession, where the law decides asset distribution rather than your intentions. Try to create separate Wills for each country where you hold assets.
While it's possible to create a Will on your own, many NRIs find working with a trusted expert like Savetaxs helpful. We have a team of experts who understand both Indian and international legal requirements, helping you avoid potential stress by preventing intestate succession. We will ensure you draft a Will that is clearly documented. Contact us today, and stay stress-free about your family's financial future.
Note: This guide is for informational purposes only. The views expressed in this guide are personal and do not constitute the views of Savetaxs. Savetaxs or the author will not be responsible for any direct or indirect loss incurred by the reader for taking any decision based on the information or the contents. It is advisable to consult either a CA, CS, CPA, or a professional tax expert from the Savetaxs team, as they are familiar with the current regulations and help you make accurate decisions and maintain accuracy throughout the whole process.
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