Drafting a Valid Will is an essential part of estate planning for Indian citizens living abroad. NRIs often own assets in multiple countries—bank accounts, real estate, investments, and ancestral property in India—making a properly drafted Will even more important. A legally valid Will helps ensure that assets in India are distributed according to the testator’s wishes and reduces the possibility of family disputes or lengthy court procedures.

Indian law allows NRIs (Non-Resident Indians), Overseas Citizens of India (OCIs), and Persons of Indian Origin (PIOs) to execute Wills governing their assets located in India. When Drafting a Valid Will, the process is governed mainly by the Indian Succession Act, 1925, with supporting rules under personal laws where applicable.

This article provides a clear, accessible, and legally accurate overview of how NRIs can draft a valid Will for Indian assets, what requirements must be followed, and how taxation and inheritance rules apply. It is informational and does not constitute legal advice.

Understanding What Makes a Will Legally Valid in India

A Will is a legal declaration by which a person (the testator) expresses how their property should be distributed after their death.

Key legal requirements under the Indian Succession Act, 1925

For a Will to be valid in India, it must satisfy the following:

1. The testator must be of sound mind

The testator should understand the nature of the document, the extent of their property, and the claims of potential heirs.
Section 59 of the Indian Succession Act states that any person of sound mind and not a minor can make a Will.

2. The Will must be voluntary

It must be free from coercion, fraud, or undue influence. If challenged later, courts examine the circumstances of execution to ensure voluntariness.

3. The Will must be properly signed

The testator must sign or affix their mark on the Will. If physically unable to sign, another person may sign under the testator’s direction and presence.

4. The Will must be attested by two witnesses

This is one of the most critical requirements.

  • Two witnesses must be present at the same time.

  • They must see the testator sign or acknowledge the signature.

  • They must sign as witnesses.

  • Witnesses do not need to know the contents.

Witnesses should ideally not be beneficiaries, to avoid disputes or allegations of undue influence.

5. No requirement for stamp duty or registration

Under Indian law:

  • A Will does not require stamp paper.

  • Registration is optional under Section 18 of the Registration Act, 1908.

  • An unregistered Will is equally valid.

Registration, however, can strengthen authenticity.

Why NRIs Need a Separate Will for Indian Assets

A Will is usually governed by the law of the country where the testator is domiciled. For NRIs, this can create challenges if a single Will tries to cover assets located in India and abroad.

Benefits of a separate India-specific Will

  • Avoids conflict between Indian and foreign probate laws

  • Speeds up inheritance proceedings

  • Reduces paperwork for Indian courts and authorities

  • Makes asset distribution clearer for Indian executors and beneficiaries

Many NRIs choose to prepare multiple Wills—one for Indian assets and one for foreign assets. It must be drafted carefully to ensure the documents do not revoke each other.

Key Components to Include When Drafting a Valid Will in India

A well-drafted Will should be clear, comprehensive, and unambiguous. Below are essential elements NRIs should ensure are included.

1. Personal details of the testator

Include:

  • Full name

  • Passport number

  • Current overseas residential address

  • Date and place of birth

  • Details confirming NRI/OCI/PIO status

2. Clear declaration of intent

The Will should start with a statement such as:

“This is my last Will and testament, made voluntarily and in full possession of my mental faculties.”

3. Appointment of an executor

Under Section 222 of the Indian Succession Act, the executor distributes the estate. Choose someone trustworthy and preferably located in India.

NRIs often appoint:

  • A close family member

  • A professional executor

  • A trusted friend in India

4. Inventory of Indian assets

List each asset separately:

  • Immovable property (house, plot, flat)

  • Bank accounts in India

  • Demat accounts and shares

  • Mutual funds

  • NRE/NRO/FCNR deposits

  • Jewellery

  • Business interests

  • Agricultural land (subject to state laws)

Clarity prevents disputes later.

5. Distribution plan

Include:

  • Beneficiary names

  • Relationship to the testator

  • Exact share for each

  • Alternate beneficiaries (if primary beneficiary predeceases the testator)

6. Treatment of liabilities

Mention any:

  • Loans

  • Mortgages

  • Business debts

And how they should be settled.

7. Revocation clause

State that all previous Wills or codicils stand revoked.

8. Signatures and attestation

The testator must sign in the presence of two witnesses. Witness details should include:

  • Full name

  • Address

  • ID proof number

  • Signature with date

Can NRIs Execute a Will Abroad for Indian Assets?

Yes. Indian courts accept Wills executed abroad if they comply with Indian legal requirements.

Key points

  • You may sign the Will abroad.

  • Witnesses abroad are valid.

  • A Will made abroad does not require Indian registration to be valid.

If executed abroad, NRI Wills often need:

  • Notarization

  • Apostille (if required under Hague Convention rules)

This helps prove authenticity but is not mandatory under Indian law.

Registration of a Will in India: Should NRIs Do It?

Registration is optional but beneficial.

Advantages

  • Stronger legal validity

  • Reduced chance of disputes

  • Helps establish authenticity if the Will is contested

Disadvantages

  • Requires physical presence in India or a special power of attorney

  • Slightly more procedural steps

NRIs frequently register Wills when they are in India to avoid later complications.

Probate Requirements for NRI Wills

Probate is a court order validating a Will.

In India, probate is mandatory only in:

  • Mumbai

  • Chennai

  • Kolkata

  • And for certain properties governed by the Presidency Towns Act

For other cities, probate is required only if disputes arise.

Probate for NRIs

If the Will was executed abroad, the court may ask for:

  • Proof of foreign residence

  • Proof of NRI status

  • Apostille/notarization documents

Probate ensures the executor gains legal authority to transfer property.

Tax Implications for NRIs While Drafting a Valid Will

1. No inheritance tax in India

India does not levy inheritance tax or estate duty.

Thus, beneficiaries of an NRI’s Will do not pay tax on inherited assets.

2. Capital gains tax

Beneficiaries may be taxed later if they sell inherited assets.

Example:

  • If a flat in India is inherited and then sold

  • Capital gains tax applies

  • Cost of acquisition = cost paid by the original owner

NRIs should consider capital gains rules under the Income Tax Act, 1961 for future tax planning.

3. Taxation on inherited bank accounts

Interest earned on inherited accounts is taxable in India.

For NRIs:

  • Inherited NRE accounts may become resident accounts

  • Taxation rules change accordingly

4. Foreign reporting requirements

Depending on your country of residence:

  • Inherited Indian assets may need to be declared under foreign tax laws

  • This is outside Indian jurisdiction but important for compliance abroad

5. Gift tax differences

If assets are gifted (not inherited):

  • Gifts to relatives are exempt

  • Gifts exceeding ₹50,000 to non-relatives are taxable

These rules do not apply to inheritance, which remains tax-exempt.

Special Considerations for Hindu, Muslim, Christian, and Parsi NRIs

Indian succession laws differ based on religion.

Hindu NRIs (including Buddhists, Sikhs, Jains)

Governed by:

  • Indian Succession Act (for Wills)

  • Hindu Succession Act (for intestate property)

They can freely bequeath self-acquired property.

Muslim NRIs

Governed by Muslim personal law, not the Indian Succession Act.

Key rule:

  • A Muslim can dispose of only up to one-third of their estate by Will without heirs’ consent.

Christian and Parsi NRIs

Governed mainly by the Indian Succession Act with minor variations.

NRIs should draft Wills according to their applicable personal law to avoid disputes.

Practical Steps for NRIs When Drafting a Valid Will

1. Prepare a clear list of all assets in India

Include addresses, account numbers, folio numbers, and value.

2. Identify suitable witnesses

Prefer witnesses:

  • Not related

  • Not beneficiaries

  • Ideally residing in the same country where the Will is signed

3. Choose an executor located in India

Executors in India can handle:

  • Bank paperwork

  • Property transfer

  • Probate procedures

4. Decide whether to register the Will

Registration is optional but beneficial for NRIs.

5. Keep the Will safe

Recommended:

  • One copy with the executor

  • One copy with a trusted person in India

  • One copy stored in a bank locker or secure digital vault

6. Review and update the Will every few years

Update whenever:

  • You acquire new property

  • Your residency status changes

  • Beneficiaries change

Common Mistakes NRIs Should Avoid When Drafting Wills

1. Using vague descriptions of assets

Example: “My house in India.”
Instead: Mention full address, survey number, and ownership details.

2. Not naming alternate beneficiaries

If a primary beneficiary dies before the testator, disputes can arise.

3. Not aligning foreign and Indian Wills

Multiple Wills must clearly state:

“This Will applies only to my assets located in India.”

4. Choosing beneficiaries as witnesses

This may invalidate parts of the Will.

5. Failing to comply with attestation laws

The most common reason for Will challenges in court.

FAQs on Drafting a Valid Will in India as an NRI

1. Can an NRI write a Will on plain paper?

Yes. No stamp paper or special format is required.

2. Can NRIs include foreign assets in an Indian Will?

They can, but it is not ideal. Courts abroad may not accept Indian Wills governing foreign assets.

3. Is registration of a Will mandatory?

No. Registration is optional but increases legal strength.

4. Can a Will be handwritten?

Yes. Handwritten and typed Wills are both valid in India.

5. What happens if an NRI dies without a Will?

Their estate is distributed according to applicable intestate succession laws, which vary by religion.

6. Are digital Wills or online Wills valid for NRIs?

India does not legally recognize fully digital Wills. Physical signatures and witnesses are required.

7. Does a Will executed abroad need to be attested by the Indian Embassy?

Embassy attestation is helpful but not mandatory.

Drafting a Valid Will is a vital step for NRIs who own property, investments, or financial assets in India. Clear drafting, proper attestation, and compliance with the Indian Succession Act ensure that the Will is enforceable and reduces future disputes. While registration is optional, it often strengthens the document. NRIs should also consider tax implications, personal laws, and the legal requirements for assets held both in India and abroad.

A carefully structured Will gives clarity and peace of mind, ensuring that your Indian assets are passed on according to your wishes and with minimal procedural hurdles.