We are frequently asked to draw up WILLs for our clients. Based on this experience, we have compiled following FAQs on this topic -
No. WILL is not compulsory in India. However, in absence of WILL, estate will be bequeathed to legal heirs as per the applicable law. Further, this might increase paperwork for legal heirs to effect transfer of assets from your name to their name. It is therefore advisable to effect a WILL for Indian assets.
A WILL is a binding document that identifies who should inherit your assets after your death. Recipients generally include a spouse, children, grandchildren or a charitable organization.
For all class of assets, you have an option of ‘nominating’ entities. In case of your death, nominee can produce death certificate before the authorities and nominee will be placed as ‘owner’ in your place without any other legal formalities. Once your WILL is opened, executors can approach authorities and in case the ‘successors’ to your assets are different than the ‘nominees’, their names will be placed as ‘owners’ and nominee’s names would be removed.
You have to complete the paperwork as prescribed by each authority and this nomination is duly recorded in their records. It is a recommended practice to complete the nomination paperwork.
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Yes. Nomination process is not a substitute for WILL.
It is advisable to have a separate WILL for Indian assets.
Not really. Only if you wish to register the WILL, you need to be present in India and not otherwise.
It is not mandatory to register a WILL in India. A simple white paper printed WILL is also sufficient and legal as far as India is concerned. It is advisable to register a WILL in cases where you suspect that legal heirs might dispute validity of WILL etc.
No. Your legal heirs need not be present in India while you are framing and executing the WILL.
The executors as defined in the WILL are the entities who will take position as ‘caretakers’ of your estate till such time that they are effectively transferred to your legal heirs.
Typically, these are close and trusted family members / friends / professionals.
Generally these are people who have the powers to protect the assets. They also have powers and obligation to effect the distribution of assets. Further, their powers can also be mentioned/restricted in the WILL as per your desire.
Yes. Capital Gains tax and income tax (as applicable) is leviable on sale of your assets in India.
Yes. If you own assets in India and you have taxable income in India, it advisable that you file your tax returns in India.
No. As per the law as it stands today (2020), there is no estate duty in India.
No. There are no restrictions. You can distribute the assets as per your desire.
Yes. They can sell the assets and repatriate funds out of India. However, if they are NRIs, RBI rules shall apply and as per current guidelines (2020), each of your heir can repatriate up to 1 Million USD per financial year.
It depends on nature of assets and also the kind of powers given to executors in the WILL. If all execution powers are given to executors, the legal heirs may not need to visit India.
Yes. That can be done. Even this can be mentioned in the WILL itself.
No. This is not mandatory. However, it would be a good practice to obtain a certificate from practicing doctor certifying that you are in fit state of mind and health to make your WILL.
The above note is subject to further study and clarifications.
This note does not form an opinion from our end and before taking any decision based on above, it is recommended to consult our experts on the subject.
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