Making a Will for Indian Assets — an NRI & OCI Guide (2026)

Why Your Foreign Will May Not Cover Your Indian Assets 

Many Non-Resident Indians (NRIs) and Overseas Citizens of India (OCIs) assume that one global estate plan prepared in the US, UK, or Canada will automatically cover their Indian properties. However, a foreign will may not fully cover Indian assets and can create legal complications.

Under the legal principle of lex situs, immovable property is generally governed by the law of the country where the property is located. So, property situated in India is subject to the applicable Indian laws even if the will was prepared and signed in another country. Having a separate, properly prepared will for Indian assets can make the transfer of property easier for your family and may help avoid delays caused by cross-border probate and estate procedures. 

Do NRIs and OCIs Need a Separate Will for Indian Assets? 

In most cases, having a separate will for Indian assets is a practical choice. Under the principle of lex situs, immovable property located in India is governed by the applicable Indian law, regardless of where you live or where you hold citizenship. Section 5 of the Indian Succession Act, 1925, is relevant to succession matters involving property in India. A separate India-only will can also allow your executors to deal with the Indian estate without having to wait for foreign courts to authenticate or process the entire estate plan. This can be particularly useful when the estate involves property, bank accounts, investments, or other assets spread across different countries.

 A major risk in cross-border estate planning is the standard revocation clause. Signing a foreign will that says “I hereby revoke all previous wills” can unintentionally cancel an existing Indian will under Section 70 of the Indian Succession Act, 1925. Section 70 of the Indian Succession Act, 1925, deals with revocation of wills. To reduce this risk, each will should clearly state which assets it covers. An India-specific will should expressly say that it applies only to the assets within its intended Indian jurisdiction and does not revoke a will dealing with assets in another country. 

What Makes the Will Valid—and Which Personal Law Applies 

For a will to be valid in India under Sections 59 and 63 of the Indian Succession Act, 1925, the testator must generally be at least 18 years old and of sound mind. The will should be in writing, signed by the testator, and attested by at least two witnesses. The witnesses should not be beneficiaries under the will. 

The law that applies to the distribution of Indian assets can also depend on the testator’s religious and personal-law framework: 

• Hindus, Sikhs, Jains, and Buddhists: Governed by the Hindu Succession Act, 1956. 
• Christians and Parsis: Governed by the testamentary rules of the Indian Succession Act, 1925. 
• Muslims: Governed by Islamic personal law, which generally limits testamentary freedom to one-third of the net estate unless the legal heirs give the required consent after the testator’s death. 

 Under the principle of lex situs, immovable property in India is governed by Indian real estate and succession law. Movable assets, such as bank accounts or stocks, generally involve the law of the person’s domicile, subject to the applicable rules and circumstances. 

How to Make and Execute Your India Will from Abroad 

Step 1: Inventory your Indian assets precisely 

Start by making a complete list of your Indian assets. Include immovable assets such as apartments, plots, and commercial properties. Also list movable assets such as NRE/NRO accounts, fixed deposits, demat holdings, and mutual funds. Where possible, include exact account numbers, survey numbers, property details, and relevant bank information. Clear asset identification can make it much easier for your executor and foreign heirs to locate and deal with the assets after your death. 

Step 2: Name beneficiaries who can legally inherit 

Use their full legal names and state their relationship to you. Where appropriate, include identification details such as passport or PAN information. The will should also clearly state who receives each asset or what share of the estate each beneficiary receives. This can reduce confusion, especially where there are several legal heirs. 

Step 3: Appoint an India-based executor 

Consider appointing a trusted executor who lives in India and can be easily contacted. You can also consider a professional trustee or institution where appropriate. Having an India-based executor can make practical tasks easier because the executor can deal directly with Indian courts, banks, property offices, and sub-registrars. This may also reduce the need for repeated cross-border powers of attorney. 

Step 4: Sign before two non-beneficiary witnesses (abroad is fine) 

Sign the will in the presence of two witnesses who are present at the same time. Neither witness should be a beneficiary or the spouse of a beneficiary named in the will. If you live outside India, you can execute the will abroad. 

Step 5: Obtain Notarization or Embassy Attestation and Insert Country-Specific Jurisdiction Clauses

After signing, have the document notarized locally or consider having it attested by the Indian Embassy or Consulate in your country of residence. The will should also contain a clear jurisdiction-limiting clause. This should state that the will covers only your Indian assets and does not revoke wills dealing with assets located in other countries. This wording is particularly important if you maintain separate estate plans for your Indian and foreign assets. 

Registration and Probate: What’s Optional, What’s Changed 

Under Section 18 of the Registration Act, 1908, registration of a will in India is optional rather than mandatory. Even so, registering the will with the appropriate sub-registrar can be useful. It creates an official record of the document and may help reduce future disputes over whether the will was genuine or whether it was altered or tampered with, particularly when the testator lives outside India.

Amendments to Section 213 of the Indian Succession Act, 1925, removed the general requirement for mandatory probate outside the former presidency towns (Mumbai, Kolkata, and Chennai). However, local authorities and financial institutions in these cities may still require a probated will before transferring assets.

 However, banks, housing societies, property registrars, and other institutions may still ask for probate or a court-issued succession certificate, particularly where the estate is valuable or there is a dispute. The exact requirement can depend on the asset, location, personal law, and circumstances of the estate. 

Special Rules for OCI Cardholders 

For Overseas Citizens of India (OCIs), one important distinction is the difference between purchasing property and inheriting property. Under the Foreign Exchange Management Act (FEMA) and the Non-Debt Instruments Rules framework, an OCI or NRI generally cannot purchase agricultural land, plantation property, or farmhouses in India. 

However, an OCI can inherit agricultural land, plantation property, or a farmhouse through a valid will or by succession. A properly drafted Indian will allows agricultural land to pass to an OCI or NRI heir through legal inheritance, even if that person cannot buy the property directly in India.

Under Section 7A of the Citizenship Act, 1955, an OCI remains a foreign national rather than an Indian citizen. However, succession to immovable property in India remains subject to the applicable Indian personal law and other relevant rules. 

When preparing the will, clearly identify any OCI heirs and specifically describe agricultural land, plantations, or farmhouses. This can help the executor and the relevant banking or property channels process the transfer through the permitted inheritance route. 

The Nominee-vs-Legal-Heir Trap 

One common mistake among NRIs is assuming that naming someone as a nominee on an Indian bank account, demat account, or mutual fund automatically makes that person the owner of the asset. A nominee only receives or holds the asset for transfer. The legal owner is the beneficiary named in the will or the person entitled under intestate succession laws.

 For example, suppose you name your brother as the nominee on your bank account, but your will leaves the liquid assets to your daughter. The nomination does not necessarily mean your brother becomes the final beneficial owner. He may have to pass the funds to the person legally entitled to them. 

To reduce the risk of disputes, review your account nominations regularly and make sure they are consistent with the intentions stated in your will. 

Tax and Repatriation Your Heirs Will Face 

India abolished estate duty and inheritance tax in 1985. As a result, heirs do not generally pay a direct inheritance tax simply because they receive Indian assets from a deceased person. However, the tax position can change when an NRI or OCI heir later sells an inherited property or investment. Capital gains tax may then apply. Under current tax regulations, long-term capital gains on real estate are taxed at 12.5% without indexation benefits for non-resident sellers. 

 When transferring inheritance proceeds out of India, non-resident heirs can repatriate up to $1 million USD per financial year from an NRO account, provided they complete the requisite tax clearances. Tax reporting and compliance procedures also use updated filing formats, including references to Form 145 / Form 146 under the updated income tax framework guidelines. For a detailed breakdown of cross-border money transfers, consult our comprehensive NRI tax and remittance guide. 

Frequently Asked Questions