Inheritance of property in India often raises legal questions for Non-Resident Indians (NRIs). One of the most common concerns is whether probate in India is mandatory to claim inherited property. The answer depends on several factors, such as the location of the property, the type of will, and the religion of the deceased.

Probate is a legal process that confirms the authenticity of a will and authorizes the executor to distribute the deceased person’s assets. For NRIs living abroad, the process may appear complex. However, understanding the legal requirements under Indian law can help avoid delays, disputes, and compliance issues.

What Is Probate in India?

Probate is a court order that certifies a will as genuine and legally valid. It gives the executor named in the will the authority to manage and distribute the deceased person’s assets according to the will.

The concept of probate is governed primarily by the Indian Succession Act, 1925.

In simple terms, probate serves three purposes:

  • Confirms that the will is authentic

  • Validates the executor’s authority

  • Protects beneficiaries from future legal disputes

Once probate is granted, financial institutions, government authorities, and property registrars usually accept it as conclusive proof of inheritance.

Why Probate Matters for NRIs

For NRIs, property matters often involve additional challenges such as remote documentation, identity verification, and compliance with Indian legal procedures. Many authorities, including banks and land registries, may insist on probate before transferring ownership.

Probate helps NRIs:

  • Establish clear legal ownership

  • Avoid future disputes among heirs

  • Complete property mutation and transfer smoothly

  • Sell or manage inherited property without legal hurdles

Without probate where it is legally required, transactions related to inherited property may be delayed or rejected.

Is Probate Mandatory in India?

Probate is not mandatory in all cases. Whether probate is required depends on three key factors:

  1. Religion of the person who made the will

  2. Location of the property

  3. Place where the will was executed

When Probate Is Mandatory

Under Section 213 and Section 57 of the Indian Succession Act, 1925, probate is compulsory for wills made by:

  • Hindus, Buddhists, Sikhs, and Jains, if the property is located in the notified areas of:

    • Mumbai (formerly Bombay)

    • Chennai (formerly Madras)

    • Kolkata (formerly Calcutta)

In these jurisdictions, probate is mandatory before the will can be used to transfer property.

For Christians and Parsis, probate is generally required across India.

When Probate May Not Be Required

In many cases, probate is not legally mandatory, especially when:

  • The property is located outside Mumbai, Chennai, or Kolkata

  • The will belongs to a Hindu, Sikh, Jain, or Buddhist

  • There is no dispute among legal heirs

  • Authorities accept alternative documents such as:

    • Legal heir certificate

    • Succession certificate (for movable assets)

    • Family settlement agreement

However, even where probate is not compulsory, authorities may still request it to avoid future claims. For NRIs, obtaining probate often provides stronger legal protection.

Probate for NRIs in India: Special Considerations

NRIs frequently inherit property located in India while residing abroad. Indian law allows NRIs to apply for probate through:

  • A Power of Attorney holder in India

  • Personal appearance via video conferencing (in some courts)

  • Submission of notarized and apostilled documents

If the will was executed outside India, the court may require:

  • Proof of execution according to local laws

  • Attestation or apostille under the Hague Convention

  • Certified copies of the will

If probate has already been granted by a foreign court, the executor may apply for re-sealing of probate in India under Section 228 of the Indian Succession Act, provided the foreign grant is from a recognized jurisdiction.

Legal Process to Obtain Probate in India

The probate procedure is handled by the District Court or High Court with jurisdiction over the area where the deceased lived or where the property is located.

Step 1: Filing the Probate Petition

The executor named in the will files a petition that includes:

  • Original will

  • Death certificate

  • Details of legal heirs

  • List of assets and their estimated value

Step 2: Court Notice

The court issues notices to:

  • Legal heirs and beneficiaries

  • The general public (through newspaper publication)

This allows anyone with objections to come forward.

Step 3: No Objection or Contested Case

  • If no objections are filed, the court proceeds with verification.

  • If objections arise, the matter becomes a contested case and may involve evidence and hearings.

Step 4: Grant of Probate

After verification, the court issues the probate certificate, which legally validates the will.

Time and Cost of Probate in India

Timeframe

  • Uncontested cases: 3 to 6 months (may vary by court workload)

  • Contested cases: Several months to years

Court Fees

Probate court fees depend on the value of the estate and vary by state. Many states impose a percentage-based fee with a maximum cap.

NRIs should also consider additional costs for:

  • Documentation and notarization abroad

  • Apostille or consular attestation

  • Power of Attorney preparation

Probate vs Succession Certificate vs Legal Heir Certificate

Understanding the difference helps NRIs choose the correct legal route.

Document Purpose Applicable To
Probate Validates a will Property and assets with a will
Succession Certificate Collects debts and securities Movable assets without a will
Legal Heir Certificate Identifies legal heirs Basic administrative purposes

For property inheritance through a will, probate in India remains the most authoritative document.

What Happens If There Is No Will?

If the deceased did not leave a will, the estate is distributed according to personal succession laws, such as:

  • Hindu Succession Act, 1956 (for Hindus, Sikhs, Jains, Buddhists)

  • Indian Succession Act, 1925 (for Christians and others)

  • Muslim personal law (for Muslims)

In such cases, probate is not applicable. Instead, heirs may need:

  • Legal heir certificate

  • Succession certificate

  • Court declaration (if disputes arise)

Practical Tips for NRIs Handling Probate

1. Locate the Original Will

Courts usually require the original document. Certified copies may not always be sufficient.

2. Verify Jurisdiction

File the petition in the court where:

  • The deceased last resided, or

  • The property is located

3. Prepare Overseas Documents Properly

All foreign documents should be:

  • Notarized

  • Apostilled or consular attested

4. Check Property Records

Ensure the property is free from disputes or encumbrances before initiating probate.

5. Consider Probate Even If Optional

In NRI cases, probate reduces the risk of future claims and simplifies property sale or transfer.

Legal Provisions Governing Probate in India

Key statutory provisions include:

  • Indian Succession Act, 1925

    • Section 213 – Right as executor or legatee

    • Section 222 – Probate to executor

    • Section 276 – Petition for probate

    • Section 228 – Re-sealing of foreign probate

  • Hindu Succession Act, 1956 – Applies where there is no will

  • Relevant state court fee laws

Indian courts have consistently held that probate is conclusive proof of a will’s validity unless revoked.

Common Challenges Faced by NRIs

NRIs often encounter practical difficulties such as:

  • Delay in obtaining death certificates or property documents

  • Family disputes over inheritance

  • Missing or damaged wills

  • Difficulty attending court proceedings

  • Differences between foreign and Indian legal procedures

Proper documentation and early planning can help reduce these challenges.

FAQs: Probate in India for NRIs

1. Do NRIs always need probate for inherited property in India?

No. Probate is mandatory only in specific jurisdictions and situations. However, many authorities prefer probate as proof of inheritance.

2. Can an NRI apply for probate without visiting India?

Yes. An NRI can authorize a representative through a notarized and apostilled Power of Attorney.

3. Is probate required if all heirs agree?

If the property is outside mandatory jurisdictions and there is no dispute, probate may not be legally required. However, it may still be requested by authorities.

4. What if the will was made abroad?

Indian courts may accept the will if it meets legal execution requirements. Apostille or consular attestation is usually required.

5. Can foreign probate be used in India?

Yes. Probate granted by certain foreign courts can be re-sealed in India under Section 228 of the Indian Succession Act.

6. Is probate needed for bank accounts and shares?

Financial institutions may require probate or a succession certificate depending on the value and internal policies.

7. What happens if someone challenges the will?

The probate case becomes contested, and the court will examine evidence to determine the validity of the will.

Understanding the rules around probate in India is essential for NRIs inheriting property. Probate is not required in every case, but it becomes mandatory in specific jurisdictions and situations under the Indian Succession Act, 1925.

Even where probate is optional, it provides strong legal proof of ownership and helps prevent disputes. For NRIs, it also simplifies property transfer, mutation, and sale. The process involves court verification of the will, notice to heirs, and proper documentation, including apostille for overseas documents.

Inheritance laws in India vary based on religion, location, and the existence of a will. Therefore, careful review of applicable legal provisions and proper documentation can help ensure a smooth and legally compliant transfer of inherited property.