What NRIs Must Know Before Drafting a Will for Indian Assets

If you are an NRI (Non‑Resident Indian) with assets in India—be it real estate, bank accounts, investments or even valuables—it’s essential you plan ahead. Having a clear NRI Will in India ensures your wishes are honoured, your heirs avoid delays or disputes, and the burden on them is lessened. 

But drafting a Will from abroad and securing probate in Delhi (or elsewhere in India) involves specific legal, procedural, and practical considerations that are often overlooked. In this article, I lay out the key points NRIs should examine closely when preparing a Will for assets in India. Think of this as your checklist for doing things cleanly, correctly, and with minimal friction.

Legal Validity Under Indian Law

A non-negotiable consideration when drafting an NRI Will in India is legal validity. Under Indian law, a Will is governed primarily by the Indian Succession Act, 1925, and it must meet specific criteria to be enforceable in an Indian court.

Basic Legal Requirements for drafting a will in India:

• The testator must be of sound mind and at least 18 years old.
  
• The Will must be in writing, except in rare cases of oral Wills by soldiers in active service.
  
• It must be signed by the testator, or by someone else in their presence and at their direction.
  
• Two witnesses must attest to the signing, and they must see the testator sign or acknowledge the signature.
  

If you’re drafting a Will from abroad for India, ensure it aligns with Indian legal standards, not just the laws of your current country of residence. For example, notarisation may be sufficient in the US or UK, but in India, proper attestation by two witnesses is important in India. Also, avoid including witnesses who are also beneficiaries—they risk disqualification from inheritance.

There’s no prescribed language for a Will in India, but it must be clear, unambiguous, and preferably in English or a widely understood Indian language. 

Jurisdiction and Applicable Law: Where Will the Will Be Enforced?

Many NRIs assume that just because they reside abroad, their Will should follow foreign laws. That assumption can complicate matters when Indian assets are involved. If you’re an NRI drafting a Will from abroad for India, you need to think clearly about where that Will will be executed and where probate proceedings will occur.

The jurisdiction for probate is typically determined by the location of the immovable property (like land or a house) or where the testator last resided in India. For instance, if your property is in Delhi, then probate in Delhi would fall under the jurisdiction of the Delhi High Court or subordinate courts depending on the value of the estate.

If you’ve been living outside India for decades, the jurisdiction still ties back to the location of your assets in India. So, your foreign residence does not exempt your Will from Indian procedural law.

 Should You Create a Separate Will for India?

This is one of the most crucial decisions for NRIs—and one that often gets mishandled. If you own property or financial assets in India, creating a separate Will exclusively for Indian assets is not just advisable—it’s practically necessary.

• Avoids jurisdictional overlap: Indian courts can process the Will without waiting for probate or recognition of a foreign Will in another country.
  
• Prevents delays in inheritance: If your global Will needs to be submitted for probate in your country of residence before your Indian estate can be touched, your heirs may face a significant delay, sometimes years.
  
• Simplifies probate in Delhi or elsewhere: Indian courts want clarity. A Will that only addresses Indian assets makes for a faster, more straightforward probate process. There’s no need to interpret foreign legal terms or resolve ambiguity about foreign-held assets.
  

Registration, Attestation, and Safe Custody of the Will

Once you’ve drafted a legally sound NRI Will in India, the next crucial step is to ensure it is properly attested, stored, and optionally registered. These practical elements are often the difference between a smooth probate process and one marred by delays, suspicion, or outright rejection.

Under the Indian Succession Act, a Will must be attested by two independent witnesses. Each must:

• Witness the testator’s signing of the Will, or acknowledge that the testator signed it.
  
• Sign the Will themselves, in the presence of the testator.
  

If you are drafting the Will from abroad for India, your witnesses can be residents of the foreign country. However:

• Their details (name, address, occupation) must be clearly included.
  
• It’s wise to include a declaration of their mental competence and relationship (if any) to you.
  

A Will does not need to be registered under Indian law to be valid. However, registration offers several benefits:

• Presumption of authenticity in court
  
• Protection against tampering or destruction
  
• Added legal credibility—especially important when family disputes are anticipated
  

To register an Indian Will:

• It must be presented before a sub-registrar in India under the Registration Act, 1908.
  
• If you cannot travel, you can execute a Power of Attorney in favour of someone in India to get it registered on your behalf, though the PoA must be correctly notarised and apostilled or attested by the Indian consulate abroad.
  

After drafting, attesting, and (optionally) registering the Will, store it wisely. You can:

• Leave it with your Indian lawyer or estate planner
  
• Deposit it with a bank locker, registrar’s office, or trusted family member
  
• Maintain a scanned copy, but courts require the original for probate
  

Leave clear instructions in another secure place (or with your executor) about where the original Will is stored.

Understanding Probate in Delhi and Other Indian Cities

Even with a perfectly drafted and attested Will, your heirs can’t simply claim your Indian assets. In most cases—especially in urban areas like Delhi—they will need to go through probate. For NRIs, understanding what probate in Delhi involves is essential for estate planning.

What Is Probate?

Probate is the legal process by which an Indian court certifies the authenticity of the Will and authorizes the executor to distribute the assets. It’s essentially the court saying: “This Will is valid, and the executor has the legal right to act on it.”

In Delhi and other presidency towns (Mumbai, Kolkata, Chennai), probate is mandatory if the Will involves immovable property within city limits. For NRIs, that means:

• If you own property in Delhi, your heirs will almost certainly need probate.
  
• This applies even if the Will is registered, unless the estate falls under certain exemptions (like being governed by Muslim personal law, where probate isn’t compulsory unless required under specific conditions).
  

Many NRIs mistakenly assume that a foreign probate (e.g., from the UK or Canada) will be accepted in India. This is not the case. Even if a Will has been probated abroad, separate probate proceedings must be initiated in India for Indian properties.

Conclusion

Estate planning is not just for the wealthy—it’s for anyone who wants to protect their legacy and ease the legal burden on loved ones. As an NRI with assets in India, your legal and geographical distance can complicate matters for your heirs if you haven’t planned well.

Work with experienced estate planning lawyers—both in your country of residence and in India—to ensure that multiple Wills, if any, are harmonised and don’t inadvertently revoke or contradict each other. Pay close attention to attestation, safekeeping, and clear naming of executors and beneficiaries.

Because when the time comes, your loved ones shouldn’t be tied up in legal red tape—they should be able to mourn in peace and honour your wishes with dignity.