Succession and NRIs: Wills, Probate, Inheritance and Repatriation After the 2025 Reform

By Bhaskar Subramanian, Advocate, S&S Co. Advocates & Solicitors

Published 24 October 2026 · Law stated as on 20 October 2026 · Informational content, not legal advice: see our disclaimer

Every non-resident Indian with a parent, sibling or spouse holding assets in India eventually runs into the same set of questions: which law decides who inherits, whether a will needs a court's blessing before it can be acted upon, and how much of the proceeds can actually leave the country. Those questions got a genuine answer this year, when Parliament quietly removed a century-old precondition to acting on a will in three of India's largest cities. This piece sets out where the law on NRI succession actually stands today, and where the real delays in administering an NRI's Indian estate continue to come from.

One Estate, Two Different Rulebooks

An NRI family rarely deals with a single, unified estate. A father who spent thirty years in Dubai or Toronto typically leaves behind a flat in Chennai, a joint bank account in Mumbai, some mutual fund units, and perhaps a savings account in the country where he actually lived and died. Section 5 of the Indian Succession Act, 1925 answers the first question any heir should ask, which law governs which piece of that estate, with a split that surprises most families the first time they hear it. Immovable property situated in India, the flat and any land, is governed by Indian law regardless of where its owner was domiciled at death. Movable property, bank balances, shares, and similar assets, instead follows the law of the country where the deceased was domiciled when they died.

The two illustrations the Act itself uses make the point concretely. A person domiciled in India who happens to die while travelling in France has their entire estate, wherever situated, governed by Indian succession rules. A person domiciled abroad who dies in India, conversely, has their movable assets dealt with under the law of that foreign domicile, while any land they held in India stays under Indian law regardless. Domicile here is not the same thing as citizenship or the passport an heir holds; it turns on where the deceased had their permanent home and settled intention to remain, a fact-specific question that can become contested where a person split their life evenly between two countries.

This conflict-of-laws framework in Part II of the 1925 Act does not apply as such to Hindus, Muslims, Buddhists, Sikhs or Jains, whose succession is instead governed by their own personal law statutes or codified rules. In practice, though, the situs principle still holds for Indian land across every community, since the Hindu Succession Act, 1956 and the other personal law regimes operate only on property within their territorial reach, and a court applying any of these laws to a flat in Chennai is applying Indian law to Indian property regardless of the label on the statute. The practical lesson for an NRI family is to work out early which half of the estate is movable and which is immovable, because that split, not the deceased's nationality, decides which rules actually govern each asset.

Dying Without a Will: Who Actually Inherits

Most NRI estates I come across are intestate, not because the family lacked the means to make a will but because nobody got around to it before a sudden illness or accident. For a Hindu, Buddhist, Sikh or Jain, the Hindu Succession Act, 1956 answers the question of who inherits with a fixed hierarchy rather than any discretion for the court. Schedule I's Class I heirs, the deceased's sons, daughters, widow and mother, along with certain representatives of a predeceased child, take the estate first and in equal shares among themselves. Only where no Class I heir survives does the estate move to the wider Class II list of relatives, and only after that to agnates and cognates.

The position of daughters within this scheme changed decisively through Section 6, as amended in 2005, and the Supreme Court's reading of that amendment in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1. The Court held that a daughter becomes a coparcener in a joint Hindu family by birth, on exactly the same footing as a son, and that this status attaches regardless of whether her father died before or after the 2005 amendment came into force, so long as the joint family itself existed as a coparcenary on 9 September 2005. An NRI daughter is not, as some older family assumptions still hold, entitled to a smaller or merely discretionary share of her father's joint family property; she stands as an equal coparcener and an equal Class I heir in his separate property as well.

For a Muslim, succession to both movable and immovable property follows the applicable school of Muslim personal law rather than a single codified statute, with Sunni and Shia law prescribing somewhat different fixed shares among a defined circle of heirs. Christians and Parsis fall under distinct parts of the Indian Succession Act itself, each with its own scheme for dividing an intestate estate among a spouse and other relatives. None of these regimes treat an heir's NRI status, foreign citizenship, or country of residence as relevant to the size of their share; a son or daughter settled abroad inherits exactly what they would have inherited had they never left India. What does change for an NRI heir is not the entitlement itself but the practical route to proving and enforcing it, which the following sections take up in turn.

Writing a Will as an NRI

A will made by an NRI for Indian assets faces no special formality beyond what any Indian will requires: it must be in writing, signed by the testator, and attested by two witnesses who saw the testator sign or acknowledge the signature, under Section 63 of the Indian Succession Act, 1925. Registration of a will is not compulsory under Indian law, and an unregistered will carries exactly the same legal force as a registered one, though registration does make it harder for anyone later to allege the document was tampered with or substituted. None of this changes because the testator happened to sign the document in London or Singapore rather than in India; a will executed abroad, with the right attestation, is just as effective for Indian assets as one signed in India, provided it otherwise satisfies the applicable law.

The harder question most NRI families actually face is whether to make one will covering assets everywhere, or separate wills for each jurisdiction. A single global will is simpler to draft and avoids any risk of two documents contradicting each other, but it then has to be probated or otherwise recognised in every country where the testator held assets, a process that can be slow where the original sits in a foreign court's custody and an Indian court wants its own certified copy first. Many practitioners, and I take the same view in the matters I see, recommend a separate will for Indian assets, cross-referring to the global will so the two do not accidentally revoke each other, precisely to let the Indian estate move without waiting on a foreign probate to conclude first.

Foreign probate is not, in any event, automatically binding in India. Where a will was already probated abroad, an heir still generally needs an Indian court's own grant, commonly described as ancillary probate, before dealing with Indian assets; a foreign court's order is evidence of the will's validity but does not by itself transfer title to anything situated in India. The Supreme Court's reasoning in Ramesh Nivrutti Bhagwat v. Surendra Manohar Parakhe, AIR 2019 SC 4948, which addressed the limitation period for challenging an Indian letters of administration granted notwithstanding an earlier foreign probate, shows how a foreign grant and an Indian one can both be in play on the same estate, and why a testator should not assume a foreign court's blessing closes the matter back home.

Probate After the 2025 Repeal: What Changed and What Did Not

For a century, Section 213 of the Indian Succession Act, 1925 told a would-be executor or legatee that they could not establish their right in any Indian court without first obtaining probate or letters of administration, but only where the will was made by a Hindu, Parsi, Sikh or Jain and concerned immovable property within the former presidency towns of Bombay, Calcutta and Madras. Muslims and Christians were always outside this requirement, and property outside those three cities was never covered by it either, which is part of why so many families outside the metros never encountered the rule at all. Where it did apply, the effect was absolute: without a probate or administration grant, a legatee simply could not go to court to enforce the will, whatever its merits.

The Repealing and Amending Act, 2025, which received Presidential assent on 20 December 2025 and was published in the Gazette of India the following day, omitted Section 213 altogether. The statutory precondition is gone; a legatee under a will made by a Hindu, Parsi, Sikh or Jain covering property in Mumbai, Chennai or Kolkata can now, as a matter of law, assert their right as executor or legatee in court without first obtaining probate, exactly as families outside those three cities have always been able to do. The repeal is not retrospective, so a probate petition already pending when the 2025 Act came into force continues under the earlier regime rather than being automatically closed.

None of this means probate has become pointless. A probate grant remains a judgment reached after the court has examined the will's execution and heard any objections, and it gives a legatee a document that a bank, a housing society, or a sub-registrar is used to seeing and is far less likely to question than the will alone. Where a family is on good terms and the will is unlikely to be challenged, skipping probate can save the better part of a year that a contested or even an uncontested probate petition in a busy High Court can take. Where there is any history of family friction, or where the estate includes assets that institutions will not release without a court order regardless of what the statute requires, probate remains the safer route once an institution's own internal requirements are factored in.

Matching the Grant to the Asset

Indian law offers three distinct court grants for administering an estate, and NRI families frequently assume one will do the work of all three. A probate confirms the appointment of an executor named in a valid will and is available only where such a will exists. Letters of administration serve the same function where the deceased left no will, or left a will that named no executor or whose named executor cannot or will not act, and the court instead appoints an administrator to collect and distribute the estate. Neither of these documents is itself limited to a category of asset; once granted, they authorise the executor or administrator to deal with the entire estate, movable and immovable alike.

A succession certificate, governed by Part X of the Act beginning at Section 370, works differently and is often confused with the other two. It is available only where the deceased died intestate, and Section 370 confines its scope to debts and securities, bank balances, provident fund and insurance proceeds, company shares, and similar financial assets, with Section 381 making the certificate conclusive against anyone who owes the debt or is liable on the security once it is produced. It does not extend to land or buildings and does not transfer title to anything. An NRI heir dealing only with a parent's demat account and fixed deposits may need nothing more than a succession certificate; the moment the same estate includes a flat, a different route is required for that asset entirely.

Which authority grants these depends on where the deceased's assets, or in some cases the executor, are situated, and an NRI heir based abroad should check this before filing rather than after. A petition can usually be filed through an advocate acting on a power of attorney, and several courts now permit an NRI party to appear by video link for at least the procedural hearings, though a personal appearance at a final or contested hearing is still frequently required. Treating these three grants as interchangeable, rather than asking which one actually matches the asset in front of the family, is one of the more common and more easily avoided sources of delay I see in these matters.

Transmission of Immovable Property: Where Estates Actually Stall

A probate, letters of administration or succession certificate is rarely the end of the process for a flat or a plot of land; it is the document that lets the heir approach the municipal or revenue authority to have the property record updated, a step generally called mutation. Mutation does not by itself confer title, title passes by operation of law the moment the owner dies or the will takes effect, but an un-mutated record leaves the register showing a dead person as owner, which makes the property difficult to sell, mortgage, or pay property tax on without explanation at every step.

This is the stage where NRI estates most often stall, and for reasons that have little to do with the succession law itself. Mutation requirements vary by state and even by municipal corporation, with some insisting on a probate or succession certificate before they will act on a will at all, others accepting a notarised indemnity bond and the consent of other legal heirs instead, and housing societies in particular frequently demanding either probate or a succession certificate for a cooperative flat regardless of what the local municipal authority would itself accept. An NRI heir who assumes the rule that applied to a cousin's flat in one city will apply equally to a parent's flat in another city is usually wrong, and finding this out only after filing one set of documents is a common and avoidable cause of delay.

Disputed mutation, where another relative objects or more than one will surfaces, pushes the matter out of the revenue authority's summary jurisdiction and into a civil suit for a declaration of title or a partition decree, a process that can run for years rather than months. Families are generally better served agreeing a family settlement early, which, once acted upon, courts have recognised as capable of binding the parties even without registration in some circumstances, than discovering the dispute only after mutation has already been contested.

Agricultural Land and the Limits FEMA Places on an Heir

Succession law decides who inherits; the Foreign Exchange Management Act, 1999 then decides what that heir may actually do with what they inherit, and the two frameworks pull in noticeably different directions when the asset is agricultural land, a plantation property, or a farmhouse. An NRI or an Overseas Citizen of India cannot purchase any of these three categories of property under the general permission FEMA extends to other immovable property; buying agricultural land as an NRI requires the Reserve Bank's specific prior approval, which is granted only in limited circumstances.

Inheritance is treated altogether differently. An NRI or OCI can inherit agricultural land, a plantation, or a farmhouse from a person resident in India, or from another person who themselves held the property lawfully, without needing the Reserve Bank's prior approval for the inheritance itself. The same heir, however, cannot receive that land by way of a lifetime gift; a resident relative who wants to pass agricultural land to an NRI family member while still alive cannot do it by gift deed, and inheritance under a will or intestate succession remains, practically speaking, the only route by which such land can reach an NRI or OCI at all. This asymmetry catches out families who assume that whatever a gift deed can do for a flat, it can equally do for a family farm.

Once inherited, the NRI or OCI heir can hold the land, is generally not permitted to engage in agricultural operations on it personally, and on sale must typically transfer it to a person resident in India, since an NRI or OCI buyer is barred from the same category of purchase that barred the heir in the first place. State land ceiling laws add a further layer that FEMA does not touch, capping how much agricultural land any single owner, resident or otherwise, may hold in a given state regardless of how the land was acquired. An NRI heir inheriting a family's agricultural land should treat the FEMA inheritance exception as permission to hold and eventually sell to a resident, not as a route back into active farming or further acquisition of the same category of asset.

What an Heir Owes the Taxman

India has had no inheritance tax or estate duty since the Estate Duty Act, 1953 was abolished with effect from 1985, and nothing has reversed that position since, whatever periodic speculation about its revival continues to circulate in budget commentary. Section 56(2)(x) of the Income-tax Act, 1961 specifically excludes property received under a will or by way of inheritance from being treated as the recipient's income, so an NRI who inherits a flat, shares, or a bank balance in India owes no tax at the point of inheriting it, regardless of the asset's value.

The tax exposure instead arrives later, on income the inherited asset generates and on its eventual sale. Rental income from an inherited flat is taxable in the hands of the NRI heir exactly as it would be for a resident owner, subject to the NRI-specific withholding and filing rules that already apply to any rental income earned in India by a non-resident. On a sale, Section 49(1) fixes the heir's cost of acquisition at whatever the original owner, typically a parent or grandparent, paid for the asset, not its market value on the date of death, and the Act separately allows the original owner's holding period to be added to the heir's own for determining whether the gain is long-term or short-term.

Where the sale is by an NRI, Section 195 requires the buyer to deduct tax at source on the full sale consideration rather than on the computed gain, which can leave a seller with far more tax withheld than is actually due until a refund is claimed after filing a return. The usual corrective is a lower or nil deduction certificate obtained in advance, historically on Form 13 under Section 197, confirming the actual gain and tax properly payable. The Income-tax Act, 2025 is renumbering and in places altering this framework as it comes into effect, and commentary around that transition has not been fully consistent on the replacement form and on whether a nil-deduction certificate stays available to NRIs; an heir planning a sale should confirm the current position with a chartered accountant at the time of the transaction.

Taking the Money Out: The USD 1 Million Route

Inheriting and selling an Indian asset is only half the exercise for an NRI heir who actually wants the proceeds in their country of residence; FEMA's remittance rules decide how much of that money can leave India and on what proof. The Reserve Bank's facility for remittance of assets allows an NRI or a person of Indian origin to repatriate up to USD 1 million per financial year out of balances held in an NRO account, which is the account type that typically receives rent, dividends, and sale proceeds of inherited or other Indian assets. This ceiling is cumulative across every NRO account the individual holds, not a separate USD 1 million allowance per account or per asset sold, a distinction that matters to a family selling more than one inherited property in the same year.

The sale proceeds of property acquired by way of inheritance fall squarely within this facility, and so does money received under a deed of settlement from a parent or other close relative, a route families sometimes use instead of a will for the same practical effect. Before a bank will remit the money, the NRI needs to show that applicable Indian tax has been paid or provided for on the amount, typically through a chartered accountant's certificate confirming the tax position, filed together with the bank's own remittance application form. This documentation requirement, not the USD 1 million ceiling itself, is where most delays in practice occur, since an heir who has not kept clean records of the asset's acquisition cost, the tax paid on any gain, and the chain of succession documents establishing their entitlement in the first place will find the bank unwilling to process the remittance until all of it is produced.

A sale that generates proceeds beyond the USD 1 million annual ceiling cannot simply be remitted in full; the excess stays in India unless the Reserve Bank grants a specific additional permission, which is not available as a matter of course. Families anticipating a large sale, several inherited properties sold together, or one high-value asset, are better served spreading the remittance across financial years where the amount allows it, or taking advice before the sale rather than after the money has landed in an NRO account with no clear way out beyond the annual cap.

Where These Estates Actually Go Wrong

Most of the genuine delay I see in NRI succession matters comes not from a hard legal question but from documentation that was never put in order while it was easy to put in order. A power of attorney executed abroad is a routine example. For a POA signed in a country that is party to the Hague Apostille Convention, which India joined in 2005, the document needs to be notarised locally and then apostilled by that country's designated authority before it is sent to India; for a POA signed in a non-Convention country, notarisation must instead be followed by attestation at the Indian embassy or consulate in that country. Either way, the apostille or consular attestation only certifies the notary's authority, not the document's content, and an apostilled POA arriving in India without local Indian stamping, which is typically required within three months of its receipt and sometimes also needs adjudication by the district authority, is not yet usable for a property transaction.

A second recurring problem is the mismatch between a deceased's name on an Indian passbook or title deed and the name on a foreign death certificate or passport, common where a person anglicised, shortened, or reordered their name after emigrating decades earlier. Banks and sub-registrars treat this as a genuine obstacle rather than a formality, and resolving it after death, through affidavits and sometimes a fresh court application, takes far longer than aligning the records while the person was alive would have.

A third and increasingly common gap is between a will drafted years or decades ago and a family that has since changed, through a second marriage, a child's death, or an asset bought or sold since the will was made. An NRI testator who writes a will early in their working life abroad and never revisits it leaves heirs to argue over whether a since-acquired flat was meant to be covered by a residuary clause, or whether a since-deceased legatee's share lapses or passes to that legatee's own children, questions a short codicil updating the will every few years would have avoided entirely. None of these three problems requires a change in the law to fix; they require the same ordinary diligence that any well-advised estate, Indian or otherwise, already applies to its paperwork.

The 2025 repeal of Section 213 removes a real and long-standing obstacle, but it does not, on its own, make administering an NRI's Indian estate straightforward. The underlying structure is unchanged: a single estate can sit under two different conflict-of-laws rules depending on whether an asset is movable or immovable, a succession certificate will not touch a flat, and FEMA's repatriation ceiling applies whether or not a will was ever probated. What the reform does is remove one mechanical precondition that used to add months to an otherwise uncontested matter in three cities, while leaving every other step, mutation, tax computation, and the documentation a bank will accept, exactly where it was.

For an NRI family, the more useful response is not to wait for the next legislative change but to treat the paperwork as part of the estate itself. A will that is current, an Indian-specific will that does not depend on a foreign probate concluding first, a power of attorney that has already cleared apostille and Indian stamping, and a clean paper trail on acquisition cost and tax paid will do more to speed up an eventual estate than any single statutory amendment is likely to. The law now asks for less in the way of a court's prior permission before a will can be acted upon; it has never asked for less in the way of the records needed to prove, to a bank's or a sub-registrar's satisfaction, that the person asking to inherit is actually entitled to do so.

Frequently Asked Questions

References & Further Reading

The provisions, rulings and official documents below were relied on for this article, which states the law as on 20 October 2026. The position can change with amendments, rules and later decisions, so check the current text before acting on any of it.

1. Indian Succession Act, 1925, Section 5 (law regulating succession to movable and immovable property), Sections 6-7 and 19 (domicile), Section 57 and Part VI (testamentary succession), Section 63 (execution of unprivileged wills), Section 213 (as omitted), Part X, Sections 370-381 (succession certificates)
2. Repealing and Amending Act, 2025 (Act No. 37 of 2025), assented to 20 December 2025, published in the Gazette of India on 21 December 2025, omitting Section 213 of the Indian Succession Act, 1925
3. Hindu Succession Act, 1956, Section 6 (as amended by the Hindu Succession (Amendment) Act, 2005), Schedule (Class I and Class II heirs)
4. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 (Supreme Court, on coparcenary rights of daughters under amended Section 6)
5. Ramesh Nivrutti Bhagwat v. Surendra Manohar Parakhe, AIR 2019 SC 4948 (Supreme Court, limitation for challenging probate and letters of administration)
6. Foreign Exchange Management Act, 1999 and the FEMA (Acquisition and Transfer of Immovable Property in India) Regulations, on acquisition of agricultural land, plantation property and farmhouses by NRIs and OCIs
7. Reserve Bank of India, Master Direction / circulars on Remittance of Assets, on the USD 1 million per financial year facility for NRO account balances and inherited asset proceeds
8. Income-tax Act, 1961, Section 49(1) (cost of acquisition of inherited property), Section 56(2)(x) (exclusion of inherited property from taxable income), Section 195 (TDS on payments to non-residents), Section 197 (certificate for lower or nil deduction)
9. Estate Duty Act, 1953, abolished with effect from 1985
10. Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, 1961 (Apostille Convention), in force for India since 2005
11. S.S. Rana & Co., 'A Long Overdue Reform: Repeal of Section 213 of the Indian Succession Act, 1925' (law firm commentary, December 2025)
12. SCC Online Blog, commentary on the omission of Section 213 of the Indian Succession Act, 1925 (2026)

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