It is a smart move, legally, for NRIs to create a Will in a written form and register it with witnesses to prevent complications in succession and inheritance. An NRI may hold properties both in India and outside but these can create a lot of complications when it comes to inheritance and succession. In order to execute a smooth succession, a Will must be made to avoid fake claims and speculations on the property so that natural heirs or the person of choice of legitimate owners as mentioned in Will can acquire the properties easily. In International Law, there are well-defined laws, which describe the succession of the movable and immovable properties of an NRI living outside India.
For an NRI, there are separate succession laws as per the religion. Indian succession Act 1925 applies to all Indians other than Muslims though a few of the provisions apply only to non-Hindus. As Hindu Succession Act does not include Muslims and Christians, Hindus, Sikhs and Jains and Buddhists, only Hindus are governed under Hindu Succession Act (HAS) 1956.
According to this act, the succession of immovable properties of Hindu NRI must be governed by HAS 1956 while the movable properties must be governed by the law of the land he is living in or by the HSA 1956. The succession of immovable property acquired by any Indian resident outside India must be governed by the law of the country where the property is situated. The succession of immovable and movable property of Hindu NRI situated outside India shall be governed under the law of the country the NRI holds the properties in.
As the HSA 1956 is not applicable outside India it is beneficial for Hindu NRIs to make a common Will to execute a succession of all of their properties, situated in more than one country. It might not be a good decision to make separate Wills for separate properties situated in different countries as it is difficult to execute more than one Will, it is convenient for an NRI to make a common will for all the properties, owned by him. It is also advised for NRIs to register for separate Wills in the concerned jurisdictions even when it is optional in India to do so. It is important for an NRI to know the laws of the country before he buys any property.
Also, the Will must be registered in the jurisdiction where the property is situated so that it invites fewer litigation issues. It is convenient for NRIs to appoint an executor in different jurisdictions to execute their Wills from now on, as per the changing status of NRIs due to their businesses in multiple countries there are possibilities that an NRI will have to make more than one Will as per the laws of the concerned country.
In the eyes of law, a nominee is a trustee and he need not necessarily be a beneficiary to a Will. The nominee is merely a caretaker and the right to the property passes by Will till the beneficiary attains majority or if there is no Will, under laws of succession. This means that if there is a Will, then the nominee will only hold the assets as a caretaker trustee for the beneficiary. The nominee will be legally bound to transfer the nominated property to the beneficiary of the Will. If there is no Will, he will have to transfer the property to the legal heirs.
NRIs can legally make separate Will as per Indian succession laws to cover the properties as well as all the assets he holds in India. NRIs must take advantage of this facility as it can save huge inheritance taxes in your country of residence as there is no inheritance tax or estate duty in India. It also allows smoother and faster transfer of title of assets to the family or to a person whose name is written in the will. Moreover, 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 laws.
In India, for a Will to be valid it should be attested by a Notary Public, sent to the Foreign and Commonwealth Office to get an ‘Apostille’ stamp, sent to the Indian High Commission for a ‘Consular’ stamp and to ensure that drafting of the will is correct. Hence, as per the stated law of the country where the property is situated will administer the succession process based on the facts written in the Will.
In the absence of a Will, the entire property generally goes to the surviving spouse or an adult interdependent partner, therefore in the case of an Indian resident or an NRI, it is highly recommended to make a Will. It gives the person, the privilege to choose how his property should be distributed after his death. Also not making a Will gives birth to possibilities that in the absence of the Will one’s family might not even know how much property is acquired by the person. In case of addition in assets earlier Will needs to be revoked and the new one needs to be registered.
Having a Will registered makes it less complicated for a property distribution of a person after his death, invites fewer uncertainties and a person can be sure and precise about the succession of his holdings. Nowadays when acquiring a property is considered as a good financial status, registering a will is a good example to set.
