INDIAN SUCCESSION ACT, 1925 • SECTION 5 & FEMA 1999 • SEPARATE SITUS WILL

NRI Will Format for Indian Property: Separate Situs Will

Legally valid, lawyer-vetted NRI will format for Indian property compliant with Section 5 and Section 63 of the Indian Succession Act, 1925. Features the critical territorial non-conflict revocation clause to safeguard your US, UK, Canada, or UAE estate plans.

Consult Senior NRI Succession Counsel
Section 5 ISA
LEX SITUS SUCCESSION DOCTRINE
0% Revocation
NON-CONFLICT SAFEGUARD
USD 1,000,000
RBI ANNUAL REPATRIATION CAP
Form 13 & 15CA
TAX & REMITTANCE COMPLIANCE
EXECUTIVE BRIEF: NRI ESTATE SUCCESSION IN INDIA
  • Lex Situs Immovable Property Rule: Under Section 5 of the Indian Succession Act, 1925, succession to immovable land, flats, and houses in India is strictly governed by Indian statutory law, regardless of foreign residency, citizenship, or foreign probate.
  • The Revocation Trap Prevention: Boilerplate Indian Will templates state 'I revoke all previous wills', which legally nullifies your US living trust, UK will, or Dubai estate plan. An Indian situs Will must contain a territorial non-conflict clause.
  • FEMA Agricultural Asset Safeguards: Under FEMA 21(R), NRIs and OCIs can lawfully inherit agricultural land or farmhouses, but can only bequeath them to resident Indian citizens. Disposing agricultural assets to foreign citizens requires prior RBI sanction.
  • USD 1 Million Annual Repatriation: Legally inherited estate liquidation proceeds can be repatriated overseas up to USD 1M per financial year under the RBI Liberalised Remittance framework using Form 15CA and Form 15CB certifications.
NRI Will Format for Indian Property and Separate Indian Situs Will Template
Verified Legal Asset: Territory-Restricted Indian Situs Will

Non-conflict revocation protocol compliant with Section 5, 63 & FEMA 1999 directives.

Supreme Court Compliant
STATUTORY FOUNDATION

1. Statutory Foundation: Section 5 & Lex Situs Doctrine

When a Non-Resident Indian (NRI) or Overseas Citizen of India (OCI) owns immovable property in India, such as residential apartments in Bengaluru, ancestral bungalows in Delhi, or plots in Pune, the legal mechanism governing succession is dictated by a fundamental principle of Private International Law codified in Section 5 of the Indian Succession Act, 1925:

“Section 5(1): Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.

Section 5(2): Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.”

This statutory dichotomy creates two distinct succession jurisdictions:

Immovable Property (Lex Situs)

Succession to real estate, land, and apartments in India is governed exclusively by Indian law (Indian Succession Act, 1925; Hindu Succession Act, 1956; or Shariat Act, 1937), irrespective of whether you hold American, British, Canadian, or Australian citizenship.

Movable Assets (Lex Domicilii)

Bank deposits, mutual funds, and shares theoretically follow your country of domicile. However, Indian banks and depositories (NSDL/CDSL) operate strictly under Reserve Bank of India and SEBI circulars, practically necessitating a localized Indian Will to avoid complex court-ordered succession certificates.

USER DEMAND SIGNAL & WARNING

2. The NRI Revocation Trap: Global vs Situs-Specific Wills

The #1 Reddit & Quora Nightmare (r/nri Horror Story)

An Indian expatriate living in California spent \$4,000 drafting a comprehensive California Living Trust and Pour-Over Will to shield their US home and \$2M 401(k) retirement portfolio from costly US probate. Later, during a vacation to Gurgaon, they downloaded a free, standard Indian Will template to leave their family flat to their sister.

“I hereby revoke, cancel, and annul all former Wills, Codicils, and testamentary dispositions made by me at any time heretofore.”

The Catastrophic Outcome: Upon their sudden demise, US probate litigators discovered the executed Indian Will. Because the revocation clause was global and unqualified, the court ruled that the California Living Trust was revoked. The entire US estate was pushed into California probate court, racking up over \$85,000 in statutory probate attorney fees, freezing bank accounts for 22 months, and exposing the estate to unnecessary taxation.

Our template eliminates this risk via a precise Territorial Non-Conflict Revocation Clause, guaranteeing your overseas and Indian estate plans co-exist safely.
FOREIGN EXCHANGE COMPLIANCE

3. FEMA & RBI Rules: Immovable Assets Held by NRIs & OCIs

Estate planning for overseas Indians must harmonize the Indian Succession Act, 1925 with the Foreign Exchange Management Act (FEMA), 1999, specifically Notification No. FEMA 21(R)/2018-RB. FEMA establishes strict statutory boundaries regarding what property an NRI/OCI can inherit and bequeath:

Residential & Commercial Properties
  • An NRI or OCI can freely inherit any residential or commercial property in India.
  • Can be bequeathed under an Indian Will to ANY person, whether resident or non-resident.
  • No prior approval from the Reserve Bank of India (RBI) is mandated.
  • Rental income and sale proceeds can be remitted through NRO bank accounts.
Agricultural Land, Plantations & Farmhouses
  • NRIs and OCIs CANNOT purchase agricultural land in India under FEMA.
  • HOWEVER, an NRI/OCI can lawfully inherit agricultural land from a resident Indian.
  • Bequest Restriction: An NRI can bequeath inherited farmland ONLY to a citizen of India permanently residing in India.
  • Bequeathing agricultural land to foreign citizens requires prior RBI sanction.
STRUCTURED COMPARISON

4. Comparative Matrix: Single Global Will vs Dual Wills

Legal ParameterSingle Global Worldwide WillDual Situs-Specific Wills (Recommended)
Revocation RiskCritical: Accidental revocation of foreign trusts, UK wills, or DIFC assets.Zero: Protected by express territorial non-conflict reservation clause.
Indian Probate SpeedVery Slow (24 to 36 months) via Section 228 Ancillary Letters of Administration.Fast (6 to 9 months) via direct District Court / High Court petition.
Apostille & Legal CostsExpensive: Foreign court certified copies, apostilles, sworn translations, consular fees.Minimal: Original Indian legal instrument executed directly on standard paper.
Local Land MutationSub-Registrars often reject foreign wills without expensive High Court confirmation decrees.Smooth mutation before Tehsildar, Patwari, or Municipal Corporation.
Executorship PracticalityForeign executor must execute Power of Attorney or physically travel to India repeatedly.Trusted resident Indian co-executor manages all ground formalities smoothly.
Bank & Demat TransmissionNRO banks trigger protracted legal scrutiny and demand high-value indemnity bonds.Rapid transmission supported by Supreme Court Shakti Yezdani citation.
LEGAL INSTRUMENT DRAFT

5. Copy-Pasteable Template: NRI Separate Indian Situs Will

Below is the complete, lawyer-drafted Indian Situs Will format for Non-Resident Indians and OCIs. Click “Copy Complete Template” to copy the editable text into Word, Google Docs, or your preferred editor.

Statutory NRI Indian Situs Will (Section 63 ISA 1925 Compliant)
LAST WILL AND TESTAMENT FOR INDIAN SITUS ASSETS ONLY
(COMPLIANT WITH SECTION 63 OF THE INDIAN SUCCESSION ACT, 1925)

I, [Full Legal Name of Testator], [Son / Daughter / Spouse of [Father's / Spouse's Name]], aged about [Age] years, holding [Indian Passport / Foreign Passport] No. [Passport Number] / OCI Card No. [OCI Number], currently residing at [Full Overseas Residential Address, City, State, ZIP/Postal Code, Country], and having permanent ties in India with Indian PAN: [PAN Number], being of sound mind, disposing memory, and robust understanding, do hereby make, publish, and declare this as my LAST WILL AND TESTAMENT RELATING EXCLUSIVELY TO ALL MY REAL, IMMOVABLE, MOVABLE, AND FINANCIAL ASSETS SITUATED WITHIN THE REPUBLIC OF INDIA ("INDIAN WILL").

1. TERRITORIAL JURISDICTION & NON-CONFLICT REVOCATION CLAUSE (CRITICAL):
1.1. I hereby revoke, cancel, and annul all former Wills, Codicils, and testamentary writings made by me AT ANY TIME HERETOFORE ONLY AND STRICTLY TO THE EXTENT THAT THEY RELATE TO, DEAL WITH, OR DISPOSE OF MY PROPERTIES AND ASSETS SITUATED WITHIN THE TERRITORY OF THE REPUBLIC OF INDIA.
1.2. I expressly declare and confirm that this Will DOES NOT revoke, alter, supersedes, or in any manner affect any Will, Living Trust, Codicil, or testamentary disposition executed by me in [Country of Residence, e.g., United States of America / United Kingdom / United Arab Emirates / Canada / Australia] or any other jurisdiction outside India concerning my assets situated outside the Republic of India.
1.3. Both this Indian Will and any separate Will or Living Trust executed by me in respect of my foreign assets shall operate simultaneously, concurrently, and independently within their respective territorial jurisdictions without conflict.

2. APPOINTMENT OF EXECUTOR & TRUSTEE FOR INDIAN ESTATE:
2.1. I hereby nominate, constitute, and appoint [Full Name of Indian Resident Executor], [Son/Daughter/Spouse of [Name]], residing at [Full Indian Address], holding Aadhaar No. [Aadhaar Number] and PAN [PAN Number], as the sole Executor and Trustee of this my Indian Will.
2.2. In the event that the said [Name of Primary Executor] predeceases me, renounces probate, is incapable, or unwilling to act as Executor, I nominate, constitute, and appoint [Full Name of Alternate Executor], residing at [Alternate Address], PAN [PAN Number], as the Alternate Executor of this Indian Will.
2.3. I hereby empower my Executor to apply for Probate or Letters of Administration before any competent High Court or District Court in India, represent my estate before the Sub-Registrar of Assurances, Municipal Corporations, Revenue Authorities, Banks, and Demat Depositories, and execute all necessary conveyances, mutation forms, and tax declarations.

3. SCHEDULE A: IMMOVABLE PROPERTIES IN INDIA:
I declare that I am the sole, absolute, and unencumbered owner of the following immovable properties situated in India, which I bequeath as follows:
3.1. [Description of Property 1: Flat/House No., Building Name, Survey/Khasra No., Ward, City, State, Pin Code]:
I hereby devise, give, and bequeath this entire property, along with all undivided proportional share in land, parking, rights, and easements, absolutely and forever to my [Relationship, e.g., Son / Daughter / Spouse], [Full Name of Beneficiary], residing at [Address], holding [Passport/Aadhaar No.].
3.2. [Description of Property 2: Commercial Unit / Land / Plot Details]:
I hereby devise and bequeath this property absolutely to [Full Name of Beneficiary 2].

4. SCHEDULE B: MOVABLE ASSETS, BANK ACCOUNTS & SECURITIES:
4.1. Non-Resident Ordinary (NRO) / Non-Resident External (NRE) / FCNR Bank Accounts:
I bequeath all balances, fixed deposits, and accrued interest standing to my credit in Account No. [Account Number] with [Bank Name, Branch Name, IFSC Code] absolutely to [Full Name of Beneficiary].
4.2. Demat Accounts, Equity Shares & Mutual Funds:
I bequeath all shares, mutual fund units, and securities held under Demat Client ID [Client ID] with Depository Participant [DP Name, DP ID] to [Full Name of Beneficiary].
4.3. Physical Lockers, Gold Jewellery & Personal Effects:
I bequeath the contents of Bank Locker No. [Locker No.] with [Bank Branch] to [Full Name of Beneficiary].

5. NOMINEES VS TESTAMENTARY HEIRS DECLARATION:
I clarify that any nomination recorded with any bank, cooperative housing society, company, or mutual fund is solely for administrative convenience. My beneficiaries specified in this Will shall be the true, absolute, and beneficial owners of all such funds and properties as confirmed by the Supreme Court of India in Shakti Yezdani v. Jayanand Salgaonkar (2023).

6. RESIDUARY INDIAN ESTATE CLAUSE:
I hereby devise and bequeath all the rest, residue, and remainder of my estate, property, and effects, whether real or personal, situated within the Republic of India, not hereinbefore specifically disposed of, absolutely and forever to [Full Name of Residuary Beneficiary].

7. SURVIVORSHIP REQUIREMENT:
Any beneficiary named in this Will must survive me by a minimum period of thirty (30) consecutive calendar days to take any beneficial interest hereunder. If any beneficiary dies within 30 days of my death, their bequest shall devolve as if they had predeceased me.

IN WITNESS WHEREOF, I, [Full Name of Testator], have hereunto set and subscribed my hands and signature to this my Last Will and Testament on this [Day] day of [Month], [Year], at [City, Country of Execution], in the presence of the witnesses attesting below.

_____________________________________________
SIGNATURE OF THE TESTATOR
[Full Name of Testator]

ATTESTATION BY INDEPENDENT WITNESSES (SECTION 63, INDIAN SUCCESSION ACT, 1925):
Signed, published, and declared by the above-named Testator, [Full Name of Testator], as and for his/her Last Will and Testament relating strictly to his/her Indian assets, in the presence of us, who at his/her request, in his/her presence, and in the presence of each other, all being present at the same time, have subscribed our names and signatures as attesting witnesses:

WITNESS 1:
Signature: ___________________________________
Full Legal Name: [Witness 1 Name]
Father's / Spouse's Name: [Father's Name]
Residential Address: [Witness 1 Address]
Passport / ID Number: [ID Number]
Occupation: [Occupation]

WITNESS 2:
Signature: ___________________________________
Full Legal Name: [Witness 2 Name]
Father's / Spouse's Name: [Father's Name]
Residential Address: [Witness 2 Address]
Passport / ID Number: [ID Number]
Occupation: [Occupation]

OPTIONAL MEDICAL PRACTITIONER FITNESS CERTIFICATE:
I, Dr. [Doctor's Full Name], MBBS / MD, Regn No. [Registration No.], practicing at [Clinic/Hospital Address], certify that I have examined the Testator [Name of Testator] on this day [Date] and find him/her to be in sound mental health, possessing full cognitive faculties and testamentary capacity to execute this Will.
Signature & Seal: ____________________________
MANDATORY CLAUSE ANALYSIS

6. Essential Clauses: Non-Conflict & Indian Executor Powers

Standalone Territorial Non-Conflict Revocation Snippet
"I hereby revoke, cancel, and annul all former Wills, Codicils, and testamentary dispositions made by me at any time heretofore ONLY AND STRICTLY TO THE EXTENT THAT THEY RELATE TO, DEAL WITH, OR DISPOSE OF MY PROPERTIES, INVESTMENTS, AND ASSETS SITUATED WITHIN THE REPUBLIC OF INDIA. 

I expressly declare and confirm that this Will shall NOT revoke, amend, supersede, or in any manner affect any Will, Living Trust, Codicil, or testamentary writing executed by me in the United States of America, United Kingdom, United Arab Emirates, Canada, Australia, Singapore, or any other foreign jurisdiction concerning my assets situated outside the Republic of India. Both this Indian Will and my separate overseas Will/Trust instruments shall operate concurrently, independently, and harmoniously in their respective territorial domains."
Resident Executor Clause

Empowers your local Indian representative to access bank lockers, apply for probate, and register mutation deeds without waiting for your foreign travel.

30-Day Survivorship Rule

Prevents catastrophic double-probate and double court fees if both spouses perish in a common transatlantic aviation or vehicular disaster.

Residuary Indian Clause

Catches forgotten fixed deposits, tax refunds, dividends, or newly inherited ancestral shares, preventing partial intestacy in India.

CROSS-BORDER PROBATE JURISDICTION

7. Cross-Border Probate: Ancillary Letters vs Fresh Probate

NRIs frequently ask: “Can I simply use my California or UK probate order in India?”The answer under Indian jurisprudence is an emphatic NO.

The Section 228 Ancillary Letters of Administration Procedure:

Under Section 228 of the Indian Succession Act, 1925, when a Will has been proved and probated in a competent foreign court, an Indian court does not grant fresh probate. Instead, it entertains a petition for Ancillary Letters of Administration with the copy of the Will annexed.

  • Requires a Court Exemplification sealed by the foreign probate judge and Secretary of State.
  • Mandates apostille certification under the Hague Convention 1961.
  • Mandatory public citation notices in local Indian daily newspapers inviting objections.
  • Payment of maximum ad-valorem state court fees (e.g., up to ₹75,000 in Maharashtra).
  • Typical timeline: 18 to 36 months of protracted High Court registry scrutiny.

Why a Separate Indian Will Eliminates This Nightmare: With an independent Indian Will, your Indian executor files directly before the District Court or High Court without waiting for the foreign probate proceedings to conclude. Furthermore, in non-presidency cities (Delhi, Bengaluru, Hyderabad, Pune, Noida, Gurgaon), probate is NOT legally mandatory under Section 213, allowing immediate municipal mutation!

FEMA CAPITAL REPATRIATION

8. Repatriation Protocol: RBI USD 1M Limit & Form 15CA 15CB

Once inherited assets in India are transmitted or liquidated, an NRI beneficiary faces the challenge of remitting funds overseas to their local bank in New York, London, Toronto, or Dubai. The Reserve Bank of India governs this process through its Master Direction on Remittance of Assets:

USD 1,000,000 Annual Cap

An NRI or OCI can remit up to USD 1 Million (USD 1,000,000) per financial year (April 1 to March 31) out of funds held in their NRO bank account resulting from the sale of inherited property or maturity of estate investments.

Form 15CA & Form 15CB Protocol

Prior to remittance, a practicing Indian Chartered Accountant issues Form 15CB, certifying that all Indian capital gains taxes have been computed and paid. The NRI then generatesForm 15CA on the Income Tax e-filing portal for the Authorized Dealer (AD) bank.

CAPITAL GAINS & TDS COMPLIANCE

9. Tax Planning: Section 195 TDS & Inherited Property Sales

When your NRI heirs eventually sell inherited immovable property in India, they encounter Section 195 of the Income Tax Act, 1961. Unlike resident property sales where buyers deduct 1% TDS under Section 194-IA, sales by NRIs trigger draconian withholding tax obligations:

The Section 195 Withholding Trap: Gross Consideration vs Net Gains

By statutory default, the buyer must deduct TDS at 12.5% or 20% plus surcharge and cess(often reaching 20% to 23.9%) on the ENTIRE GROSS SALE CONSIDERATION, not just the capital gain! For example, on a ₹2 Crore inherited apartment, ₹41.6 Lakhs can be deducted and locked up with the tax department.

Solution: The NRI seller must submit Form 13 on the TRACES portal under Section 197 to obtain a Lower or Nil Deduction Certificate prior to executing the registered sale deed.

RECOMMENDED STATUTORY CALCULATOR
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STEP-BY-STEP EXECUTION PROTOCOL

10. Execution SOP: High Commission Attestation Protocol

Executing an Indian Will while living abroad must adhere strictly to Section 63 of the Indian Succession Act, 1925. Follow this verified 3-path execution protocol based on your geographic location:

PATH A: APOSTILLE (HAGUE NATIONS)

For USA, UK, Canada, Australia: Sign before a local public notary with two independent adult witnesses. Submit the notarized document to the state Secretary of State / Foreign Office for an Apostille certificate.

PATH B: CONSULAR ATTESTATION

For UAE, Singapore, or non-Hague nations: Book an appointment at the nearest Indian Embassy or Consulate General. Sign before the Consular Officer under the Diplomatic and Consular Officers Act, 1948.

PATH C: SRO REGISTRATION IN INDIA

During your visit to India: Sign on plain paper before two witnesses and register before the Sub-Registrar having territorial jurisdiction over your property. Provides highest evidential weight.

NRI Will Execution Checklist (Physical Attestation Steps)
Print on durable white A4 or Legal paper (one-sided)
Two independent adult witnesses receiving zero bequests (Sec 67)
Testator initials every page and signs full signature at end
Doctor fitness certificate attached if testator is senior citizen
LEGAL EXPERTISE & PRACTICE

11. Institutional Profile: Legal Excellence & Trust Signals

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WillDrafting.in Cross-Border Estate Succession Bench
Bar Council Verified Advocates
Pan-India Jurisdiction

Comprehensive courtroom probate practice before Delhi High Court, Bombay High Court, Calcutta High Court, and District Courts pan-India.

Cross-Border NRI Estate Practice

Structuring simultaneous US living trusts, UK mirror wills, Dubai DIFC wills, and Indian situs wills for diaspora families across 42+ nations.

FEMA & TRACES Tax Advocacy

Filing Section 197 Form 13 Lower TDS petitions, managing Form 15CA/15CB repatriation, and handling revenue mutations at Sub-Registrar offices.

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FREQUENTLY ASKED QUESTIONS

Frequently Asked Questions: NRI Wills for Indian Property

Under Section 5 of the Indian Succession Act, 1925, succession to immovable property situated in India is strictly governed by the law of India (lex situs), regardless of your overseas domicile or citizenship. Having an independent Indian Will prevents multi-year cross-border probate litigation, eliminates exorbitant apostille and foreign court exemplification expenses, and ensures seamless revenue mutation before local Sub-Registrars and municipal authorities.
STATUTORY REPOSITORY & OFFICIAL CITATIONS

Statutory Citations: Indian Succession Act & RBI Directives

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