In the last three decades, the Indian diaspora has seen a significant rise. Indians have become more mobile than ever before and have been migrating across the Globe. This migration of NRIs is more in certain geographies like Middle East, Singapore, Hong Kong, USA, Canada and Australia. India’s attraction as an investment destination coupled with the desire of NRIs to own a home in India has resulted in them having assets in multiple countries, but having such cross border asset ownerships bring with them their own set of challenges.
One of the biggest challenges that the NRIs face is how to plan for a smooth transfer of these assets. Will, which is one of the simplest tools of Estate Planning can be drafted for smooth inheritance. When one is drafting a Will one question, which often crosses NRI’s mind, is should they have separate Wills, i.e., one for Indian assets and one for offshore assets?
There is no simple answer for this, one should carefully weigh the pros and cons of having a Single and/or Concurrent Will (separate Will for separate jurisdictions) before deciding on what is best for him/her.
What are the Challenges faced by NRIs if they opt for a single Will?
Some of the challenges of having a Single Will are:
1) At the time of Execution, it has to be probated in their country of residence and then they have to apply for ancillary Probate in India.
2) The Probate process in many offshore jurisdictions cannot be completed until one has obtained ancillary Probate in another country (in case of NRIs in India).
3) In case of a foreign executed Will, the Will must qualify in India and should be able to meet the provisions of Indian Succession laws. If they do not meet the requirements of Indian Law then it might lead to unnecessary complications and litigations later on.
4) In India the time taken and court fees for obtaining a Probate ranges from six months to a few years and the cost ranges from INR 50k to a high of 8.75% in certain states in India. Hence, if there is a delay in obtaining Probate in India it might lead to a delay in having full access to the estate of the deceased.
What are Challenges faced by NRIs if they opt for a Concurrent Will?
In case NRIs opt for having separate Wills – one for offshore assets and one for Indian assets then some of the points they must consider are:
1) There is additional cost of drafting of Will in each jurisdiction and they have to consult with multiple lawyers or estate planners before doing so
2) They have to decide who gets to keep the multiple Wills, as, if not properly planned, it might lead to confusion amongst their legal heirs.
In conclusion, although there is no simple answer, if NRIs want to avoid future complications and ensure that the legal delays in India do not cause delays in having complete access to the deceased person’s Estate, they should have two Wills – one for Global assets and one for their Indian assets.
