NRI Living Abroad: What Happens to Your Indian Property If You Die Without a Will?

Your Family Could End Up Fighting Indian Courts From Another Continent

This happens many times every year, but it rarely gets discussed.

An NRI living in Dubai passes away suddenly. He owns a flat in Pune and a plot of land in his hometown in Andhra Pradesh. He also has fixed deposits in two Indian banks. His family, his wife in Dubai, his daughter studying in Canada, and his son in Hyderabad, assume the process will be simple. They believe the assets clearly belong to the family.

Within a few weeks, the Indian banks freeze the accounts. A cousin moves into the Andhra Pradesh plot, claiming a share because there are no written instructions. The Pune flat’s housing society refuses to update ownership records without a court order. The daughter’s paperwork from Canada was rejected because it lacked apostille certification. A lawyer explains that resolving everything could take two to three years and cost several lakhs.

All of this could have been avoided. One document, a valid will, would have made things much easier.

If you are an NRI who owns property in India and have not made a will, this guide is for you. The goal is not to alarm you, but to help you see what is at stake and what steps you can take before it is too late for your family.

First, know this: Indian law decides what happens to your property in India.

Many NRIs find this surprising. You might have a will in the UK, the US, Canada, or the UAE that covers your home, pension, and savings there. However, that will not automatically cover your property in India.

Indian law governs immovable property, such as land, flats, and buildings, in India. It does not matter where you live, which passport you have, or what your will says. Indian succession law always applies to your property in India.

This is one of the most common and expensive mistakes NRIs make.

Which Indian Succession Law Applies to You?

India does not have one uniform succession law. The rules that apply to your estate depend on your religion, not your nationality or where you live.

Hindu, Sikh, Jain, Buddhist	Hindu Succession Act, 1956
Christian, Parsi, Jew	Indian Succession Act, 1925
Muslim	Muslim Personal Law (Shariat)

This system, called personal law succession, has existed since colonial times. Here is what it means for inheritance when there is no will:

For Hindus, Sikhs, Jains, and Buddhists

The Hindu Succession Act sets out a clear order for who inherits property. First, it goes to Class I heirs, which include your spouse, children, and mother. If none of them is alive, it passes to Class II heirs, such as your father, siblings, and other relatives listed in the Act. If there are no Class I or Class II heirs, the property passes to agnates, relatives on the father’s side. If there are no agnates, it then goes to cognates, or relatives on the mother’s side.

A key change that still surprises many families is the Supreme Court’s decision in Vineeta Sharma v. Rakesh Sharma. This ruling confirmed that daughters have the same coparcenary rights in ancestral property as sons, regardless of whether their father was alive on 9 September 2005, when the Hindu Succession (Amendment) Act took effect. So, daughters can now claim equal shares in ancestral property, even if people once thought only sons could inherit.

For Christians and Parsis

The Indian Succession Act, 1925, covers these cases. For Parsis, if someone passes away leaving a spouse and children, the spouse usually receives half of the estate, and the other half is divided equally among the children. If there are no children, the spouse still gets half, and the rest is divided among other relatives, such as parents, in the order set by the law.

For Indian Christians, the Indian Succession Act also applies when someone dies without a will. The law sets out a clear order for dividing the estate, usually giving a set share to the spouse and the rest to the children or other relatives, depending on who is still living.

For Muslims

Islamic inheritance law applies here and sets out the exact shares for each heir, as prescribed by the Quran. For example, a son usually inherits twice as much as a daughter. Importantly, a Muslim can only leave up to one-third of their estate to anyone they choose without the heirs’ consent. The other two-thirds must be divided according to religious rules, even if there is a will. Because of these rules, Muslim NRIs often use other estate planning tools, like family trusts or gifts.

What Actually Happens When an NRI Dies Without a Will in India

This process, known as intestate succession, can be complicated. It means dealing with courts, lawyers, long waits, and real expenses. Here’s what your family is likely to go through:

Step 1: Bank Accounts Get Frozen

As soon as the bank learns of the account holder’s death, the account is frozen. Your family won’t be able to access the money without legal proof of heirship. They will need either a Succession Certificate (for things like bank deposits and shares) or a Legal Heir Certificate. Both require going to court.

The application for a Succession Certificate must be filed in the civil court that has jurisdiction over the location of the assets or the person’s last residence. If heirs live in different countries, organizing this can be extremely difficult.

Step 2: Property Transfer Gets Stuck

For property such as your flat, land, or shop, heirs must have the ownership records changed to their names at the local revenue office (tehsil or sub-registrar’s office). Without a will, they need proof of legal heirship, which can be provided by a court document or an agreement from all other heirs.

If any heir, even a distant relative who is legally entitled, refuses to cooperate, the case goes to court. Indian property courts usually take a long time to resolve these matters.

Step 3: Documents From Abroad Need Authentication

Any document your family provides from outside India, such as a death certificate, power of attorney, or affidavit, must be apostilled under the Hague Convention or attested by the Indian Embassy or Consulate in that country. This is required by law. It also takes time and is often an unexpected burden for families already coping with loss.

Step 4: Distant Relatives May Assert Claims

Without a will, anyone who qualifies as a legal heir under the law can claim the property. This might include relatives you have not spoken to in years, such as cousins, uncles, or in-laws. When there are no clear instructions, property disputes often happen. Empty properties or those in smaller towns are especially at risk of being occupied without permission while legal cases continue.

Step 5: Court Proceedings Take Years

Cases about contested intestate succession in India often take two to five years to finish. If heirs disagree, if documents from abroad are questioned, or if anyone refuses to cooperate, it can take even longer.

This is what your family will face, not because the law is unfair, but because it was not made for convenience. The law exists to distribute property when there are no instructions. The best thing you can do is leave clear instructions yourself.

Does Your Foreign Will Cover Indian Property?

Almost every NRI wonders about this when they learn their foreign will is not automatically valid in India. The answer is technically yes, but in practice, it is more complicated.

A will made abroad can be valid for Indian assets if it complies with both Indian and foreign law. However, enforcing it in India involves extra steps that many people do not expect:

1. The foreign will must first be probated in the country where it was made.
2. That probate order must then be apostilled or attested by the Indian Consulate.
3. The executor must then apply for a separate probate or letters of administration in an Indian court, specifically the one that covers the area where the Indian property is located.
4. The Indian court will notify the heirs, invite any objections, and, if none are filed, grant probate. Only after this can the executor take action.

In short, even if you have a valid foreign will, your family will still need to go through the Indian court to handle Indian property. That is why most NRI estate planning lawyers strongly suggest making a separate India-specific will for your Indian assets, in addition to your foreign will.

What a Separate India-Specific Will Achieves

• It eliminates the complex step of probating a foreign will first.
• It clearly names an executor who lives in India, which is strongly recommended.
• It avoids the risk that a foreign will may accidentally revoke or conflict with an Indian estate plan.
• It significantly speeds up the transfer of your assets to your heirs.
• It can be registered with the Sub-Registrar in India for additional legal strength.

One important caution: If you have both a foreign will and an India-specific will, they must be drafted carefully to avoid cancelling each other. Many wills include a standard clause that says, “This revokes all previous wills.” That single line can accidentally cancel your Indian will if not handled correctly. If possible, use different lawyers for each country.

FEMA: The Overlooked Rule Until It Matters Most

The Foreign Exchange Management Act (FEMA) governs the movement of money and property between India and other countries. It adds additional rules on top of the succession law that NRI heirs must follow.

Here’s what FEMA says about inherited Indian property:

Inheriting property usually does not need RBI approval. NRIs and Persons of Indian Origin (PIOs) can inherit any immovable property in India, including agricultural land and plantations, which they cannot buy under FEMA. Inheritance is one of the few ways NRIs can legally own this type of property.

There are specific rules for selling inherited property. An NRI can sell inherited residential or commercial property to another Indian resident or to another NRI or PIO without needing RBI permission, as long as certain conditions are met. Selling to a foreign national who is not an NRI or PIO does require RBI approval.

There is a limit on sending money abroad. If you sell inherited property and want to transfer the proceeds to your bank account in the UK, UAE, US, or Canada, FEMA allows you to send up to USD 1 million per financial year. The money must go through an NRO (Non-Resident Ordinary) account. To do this, you need:

• Form 15CA (self-declaration of tax compliance)
• Form 15CB (Chartered Accountant certificate confirming tax has been paid)
• Tax clearance from the Income Tax Department
• Legal documentation of inheritance

Agricultural land and farmhouses are subject to special rules. NRIs can inherit them, but cannot send money abroad from selling them unless they get clear RBI permission, which is much harder to get. If your Indian property includes agricultural land or a farmhouse, you should get specialist advice for your estate plan.

Taxes: What Your Family Will and Won’t Have to Pay

Here’s some good news: India does not have an inheritance tax. The estate duty was abolished in 1985, so your heirs will not have to pay tax just for receiving your property.

However, taxes may apply later on:

Capital Gains Tax on Sale: If your heirs choose to sell the property they inherit, they will have to pay capital gains tax. When the property has been owned for more than 24 months, counting your time as owner, it is considered a long-term capital asset.

From February 2026, long-term capital gains on property will be taxed at 20% with indexation, or 12.5% without indexation, depending on when the property was bought and the taxpayer’s preference. If the property was bought before 23 July 2024, the heirs can choose the option that best suits them. Short-term gains from properties held for 24 months or less are taxed at the regular income tax rates.

There are some exemptions available:

• Section 54: You can get an exemption on capital gains if you reinvest in another residential property within two years of selling, or finish building a new property within three years. Sometimes, buying up to one year before the sale also qualifies, depending on your situation.
• Section 54EC: You can get an exemption on gains if you invest in eligible government-backed bonds like NHAI, REC, PFC, or IRFC within six months of the sale. The total investment limit is ₹50 lakh across the sale year and the next financial year.

Rental Income: If your heirs keep the property and rent it out, the rental income will be taxable in India. If they are NRIs, TDS (Tax Deducted at Source) rules apply, typically at 31.2% on rent payments, and they may also need to file Indian tax returns if their total income exceeds the basic exemption limit.

Double Taxation Advisory: Many countries tax global income or estates, so your heirs may face taxes in both India and their country of residence. India has Double Taxation Avoidance Agreements (DTAAs) with countries like the US, UK, UAE, Canada, Singapore, and several others. These agreements can help reduce or even eliminate double taxation. Working with a chartered accountant who is qualified in both India and the other country can help you plan your estate to make the most of these treaties.

Why Every NRI Should Have a Separate India-Specific Will Right Now

This is more than just legal advice. Once you see what’s at risk, it’s simply common sense.

If you don’t have an India-specific will, your family will have to deal with a process that is:

• Time-consuming: at least 6 months, and often 2 to 3 years
• Expensive: lawyer fees, court fees, CA fees, and travel to India
• Geographically challenging: coordinating from different countries, time zones, and around holidays
• Emotionally draining on top of grief.

A valid, well-prepared trip to India will cost much less than what your family would spend without one. Unlike some legal documents, it’s also straightforward. Here’s what your India-specific will should include:

• A clear statement that it covers only your Indian assets, so it won’t conflict with your foreign will
• A complete list of all your Indian assets, including flat addresses, survey numbers, bank account details, investment folios, and anything else you own
• The names of beneficiaries for each asset, along with their full addresses and ID details
• An executor who lives in India, so they can go to courts, handle banks, and manage everything for your family
• Name an alternate executor, in case your main choice is not available
• Attestation by two independent witnesses who are not beneficiaries
• Optional but strongly recommended: registration with the Sub-Registrar of Assurances in India.

Should You Register Your Will?

You don’t have to register your will under Indian law. It’s valid even without registration. However, registering your will makes it much harder for anyone to challenge its authenticity. A registered will is legally presumed to be made voluntarily and by someone of sound mind. If someone wants to challenge it, they have to prove their case. Since property disputes in India often involve claims of forgery or undue influence, this legal presumption is very helpful.

If you can, register your will during your next visit to India. Or, you can appoint someone with Power of Attorney to do it for you. The cost is small and worth it.

The Power of Attorney: Your Lifeline for Managing Indian Property From Abroad

If you own property in India but cannot always be there to manage it, a Power of Attorney (PoA) is essential. It helps you during your lifetime and is also useful for your estate plan.

A PoA lets someone you trust in India act on your behalf. When planning your estate, you can use a PoA to:

• Register your will in India without travelling
• Manage the property and collect rent in your absence.
• Handle mutation, tax filings, and other administrative tasks.

If you sign a PoA outside India, it must be notarised in your country. Then, it should be apostilled if your country is part of the Hague Convention, or attested by the Indian Embassy or Consulate. Otherwise, the PoA will not be valid in India.

NRI Estate Planning Checklist

Begin by checking how ready you are:

• Have you listed all your Indian assets, such as property, bank accounts, shares, fixed deposits, and jewellery?
• Do you have a valid will for India that is separate from any will you have in another country?
• Does your Indian will clearly name an executor who lives in India?
• Have you ensured that your Indian will does not cancel your foreign will, and vice versa?
• Have you registered your Indian will with the Sub-Registrar? This is recommended but not required.
• Have you updated the nominees for all your Indian bank accounts and investment folios?
• Do you have someone in India with a valid Power of Attorney for your affairs?
• Does your family know where your will and property documents are kept?
• Have you talked to a Chartered Accountant about FEMA rules and how to move money out of India?
• Have you checked the tax rules in both India and the country where you live?

If you answered “no” to more than three questions, especially in the first four, you should consider taking more steps.

Common Mistakes NRIs Make With Indian Property Estate Planning

Many people think that having a nominee is enough, but it is not. A nominee is only a custodian, not the legal owner. The nominee’s role is to receive the asset and hold it until the legal heirs, as decided by succession law or a will, come forward. A nomination does not replace succession law or a will. You should always have a will along with nominations. They work together, not as substitutes.

Relying on a single global will for all your assets might seem simple. For example, a will that says “all my worldwide assets go to my spouse” sounds straightforward. However, enforcing this in India requires an apostille and an additional probate process, which can lead to months of delay and additional court costs. Creating a separate will for your Indian assets is less expensive and saves your family a lot of trouble.

Not choosing an executor who lives in India can cause problems. Your executor should be in India and able to go to court, handle bank matters, visit the sub-registrar, and manage things locally. If you appoint your spouse in Dubai or your daughter in Canada, it can create major practical issues. Choose someone you trust, such as a sibling, close friend, or a reliable lawyer, who is actually in India.

Ignoring agricultural land. If you inherited or own agricultural land in India, your estate plan needs specialist FEMA advice. This category of property is subject to restrictions on what NRIs can do with it, and repatriation of sale proceeds requires RBI permission.

Failing to update your will after major life changes is a common mistake. Events such as marriage, divorce, the death of a beneficiary, buying new property, or selling existing property should prompt you to review your will. If your will does not match your current assets, it can cause confusion and leave gaps.

This article is for general informational purposes only and does not constitute legal or financial advice. Laws and FEMA regulations are subject to change. Consult a qualified lawyer specializing in NRI estate planning and a Chartered Accountant for advice specific to your situation.

— — —

Disclaimer:
This article is published for general legal awareness and informational purposes only, and should not be construed as legal advice or a solicitation to act.

About the Author:
Joginder Poswal is an advocate enrolled with the Bar Council of Punjab & Haryana (Enrolment No. PH/9616/2023) and practising exclusively in non-litigation legal advisory, drafting, and consultation under Indian law.

For more information, please refer to the contact details provided on this website.