Given the uncertainties of life, everyone needs to stop procrastinating and get down to the task of making a Will. But non-resident Indians (NRIs) face a few special challenges in doing so. They may not be aware of the tax laws and the legal processes prevalent in India, or they may not know whom to contact to get this task done. NRIs also visit India for only a limited period of time. All these factors make this task especially challenging for them.
A Will is a document where a person expresses his desire regarding how he wants his estate to be disposed after his death. For NRIs, who often create assets in multiple global jurisdictions, including India, the task of writing a Will becomes all the more important .
Locating assets and investments becomes easier: Many NRIs’ family members seldom visit India. In fact, the younger generation may not even be aware of all the assets held by their parents, and even where they are located. In case the NRI dies intestate, the family members will struggle to locate these assets, and transfer or inherit them. They will also have to apply for a succession certificate, which may prove time-consuming and tiresome. Litigation may complicate matters further for them.
Many NRIs also invest in financial assets like bank fixed deposits, shares and mutual funds in India, as Indian financial investments offer them better returns than those in developed markets. Many such investors are not organised and do not maintain detailed records of their investments. If the individual prepares a Will where he mentions all the relevant details about his bank account, demat account, the name and contact number of his relationship manager, and other such details related to his investments, the process of executing his Will will become much easier.
Learn which inheritance law applies to you: The inheritance laws of each country are specific to those jurisdictions. In India, for instance, we have religion-specific succession laws: Hindus have to follow the Hindu Succession Act, Muslims follow the Shariya Law, and so on. Then we also have the Indian Succession Act, which supersedes all the religious Succession Acts.
NRIs need to first understand the specific Succession Act that will apply to them. For instance, if a person is a Christian, he needs to follow the Christian Succession Act. According to it, if a person remarries, he needs to rewrite his Will as his earlier Will becomes invalid.
No need to make multiple Wills: NRIs should not make multiple Wills for multiple jurisdictions where they hold assets. If they hold assets in the UK, USA and India, there is no need to create three Wills. A single Will can cover all the assets held in the three jurisdictions. The only point to remember is to consider the local laws where the assets are domiciled.
The only exception to this advice is the United Arab Emirates (UAE). You should get a Will drafted and registered with the DIFC DPR (Dubai International Financial Centre, Data Protection Regulations) office for the assets held in that country. If an NRI wants to register his Will in an international jurisdiction, he should register it with the local embassy.
Select the right executor: This is extremely important. The executor is the person who will deal with all the legal formalities, identify all your assets, the beneficiaries, and distribute the assets among them. Identify someone younger than yourself for this task. At the same time, the person should be mature enough to be able to handle the legal formalities. Appoint a local person as your executor instead of someone who resides abroad. It will be difficult for a person who lives abroad to devote the time necessary for this task and do all the follow-up.
Choose responsible and trustworthy advisors and helpers. This includes possible guardians, executors, trustees, and power of attorney agents. You want to make sure that your affairs are handled appropriately and with care.
Though it is not mandatory, it is advisable to register a Will. This will help your family members at the time of execution. It will make it easier for them to prove the genuineness of the Will in case of litigation. If the family cannot find the Will, or it has been destroyed in a natural calamity such as a fire, then the family should approach the registrar for a copy of the Will via the court. The probate process will be slightly easier if the Will is registered.
There is no need to share the contents of your Will with your family members, though you may inform them that you have created a Will. Declaring the contents could lead to unnecessary dissatisfaction and strife among family members.
The Indian judiciary has recently allowed passive euthanasia. Now you can write a living will, which means that if you are in an incapacitated state you can opt for removal of medical support systems. But the Will does not cover managing of assets during the state of incapacitation. So, it is advisable to draft and issue a Power of Attorney in favour of a person you trust to mitigate the risk of incapacitation.
Include funeral planning in your estate planning. This will ensure that your funeral-related wishes are followed. It will also help to minimise disagreements within the family regarding the funeral arrangements and procedures.
Take the help of a professional and don’t attempt to do estate planning on your own. You may make serious errors that could jeopardise the safe transfer of your estate to your successors. Seek the help of an estate planner, and also get legal guidance from a local lawyer and a tax expert. Collate and collect all the relevant documents, including an older Will if one exists, property documents, etc. and have them available at the time of writing a Will. Also, revisit your Will once every three years.
The writer is founder & CEO, Terentia