For NRIs settled in the USA, UK, Canada, Australia, or the Gulf, estate planning is uniquely complex. You likely own assets in two or more countries — a family home in Kochi, an ancestral property in Thrissur, and a house, retirement accounts, and investments abroad. Without a coordinated estate plan, your family could face years of legal battles across multiple jurisdictions.
Do NRIs need two wills? (quick answer)
Often, but not automatically. Many NRIs benefit from two coordinated wills — one for Indian assets and another for assets in the country of residence — after advisers in both jurisdictions confirm that the instruments will work together. The reasons to consider this structure include:
- Lex situs: Succession to your Kerala immovable property is governed by Indian law regardless of where you live (Section 5, Indian Succession Act 1925).
- The revocation trap: A later will with a broad revocation clause can accidentally revoke an earlier Indian will. Section 70 of the Indian Succession Act governs revocation formalities; both instruments should be drafted so their territorial scope and relationship are unambiguous.
- Faster probate: Separate wills can be probated in parallel in each country instead of one foreign-format will being delayed in an Indian court.
- Personal law: Which Indian succession law applies (Hindu, Christian, or Muslim) depends on your religion, and each treats wills and probate differently.
Why NRIs Need Two Wills
The fundamental principle is lex situs — succession to immovable property is governed by the law of the country where the property is located (Section 5, Indian Succession Act 1925). This means:
- Your Kerala property will be governed by Indian succession law regardless of where you live.
- Your assets in the USA/UK/Canada will be governed by the law of that country or state.
A single will attempting to cover everything often creates problems:
The Revocation Trap
A later will does not safely coexist with an earlier instrument merely because the assets are in different countries. A broad "revokes all previous wills" clause may revoke the Indian will even when that was not intended. Section 70 prescribes revocation formalities, while the effect of the later instrument turns on its wording and the applicable law. Coordinated drafting should make each instrument's scope and relationship explicit.
Indian Succession Law: What Applies to Your Kerala Property
Hindus
The Hindu Succession Act 1956 (as amended in 2005) governs intestate succession. Key points:
- Class I heirs (spouse, sons, daughters, mother) inherit equally.
- Kerala abolished the Joint Hindu Family system in 1976, so property vests as individual shares.
- Daughters have equal coparcenary rights under the 2005 amendment — confirmed by the Supreme Court in Vineeta Sharma v. Rakesh Sharma (2020).
- Section 213's probate-before-right bar was omitted from 20 December 2025. A court grant may still be relevant for administration, a dispute, representative title, or a particular institution's lawful requirements.
Christians
The Indian Succession Act 1925 governs succession. The former Section 213 probate bar has been omitted, including for Christian wills. Probate or letters of administration may still be sought for administration or a dispute. Intestate shares depend on the surviving relatives and the applicable provisions; a will changes the analysis.
Muslims
Muslim Personal Law (Shariat) Application Act 1937 governs succession. A Muslim can bequeath only one-third of the estate by will (the remaining two-thirds is distributed according to Shariat inheritance rules). This limitation is critical for estate planning.
Structuring Your Estate Plan
Step 1: Inventory All Assets
List every asset in India and abroad:
- Immovable property (land, houses, apartments) in Kerala.
- Bank accounts (NRE, NRO, savings accounts abroad).
- Investments (mutual funds, stocks, FDs in India; 401(k), ISA, pension abroad).
- Digital assets (crypto, online accounts).
- Insurance policies in both countries.
- Gold, jewelry, and valuables.
Step 2: Draft Two Coordinated Wills
- Indian will: Covers all Indian assets. Appoint an executor based in India (ideally in Kerala). Register this will at the Sub-Registrar's office for added security (optional but recommended).
- Foreign will: Covers all assets in your country of residence. Appoint a local executor. Follow the formal requirements of that jurisdiction (witnesses, notarization, etc.).
- Cross-reference: Each will should acknowledge the existence of the other and explicitly state it does not revoke it.
Step 3: Address FEMA Compliance
When your heirs inherit Indian property, FEMA rules govern what they can do with it:
- NRI/OCI heirs can hold inherited property (including agricultural land, which they cannot purchase).
- Sale proceeds can be repatriated up to USD 1 million per financial year from the NRO account, subject to tax compliance.
- Ensure the will includes instructions for FEMA-compliant transfer.
Step 4: Minimize Cross-Border Tax Exposure
- India: No inheritance tax, but capital gains tax applies when heirs sell inherited property (cost of acquisition and holding period are taken from the previous owner). Long-term gains are taxed at 12.5% without indexation under the post-July-2024 regime; NRIs are not eligible for the 20%-with-indexation option available to resident individuals.
- USA: Federal estate tax applies to worldwide assets of US residents/citizens. The exemption is $15 million per individual (2026) — made permanent by the One Big Beautiful Bill Act signed in July 2025, which repealed the earlier scheduled sunset.
- UK: Inheritance tax at 40% on estates above £325,000 for UK domiciled individuals.
- UAE/Gulf: No inheritance tax, but without a will, Shariat law may apply to Muslim residents' assets by default in many Gulf countries.
Step 5: Appoint Guardians and Trustees
If you have minor children, your will should address:
- Guardianship: Designate a guardian for minor children in both jurisdictions.
- Testamentary trust: Consider setting up a trust for minor children's inherited property in Kerala to prevent mismanagement.
Common Mistakes to Avoid
- Generic revocation clause — Ensure your wills do not inadvertently revoke each other.
- Ignoring personal law — Your religion determines which Indian succession law applies. Do not assume one-size-fits-all.
- No registered will in India — While registration is optional, an unregistered will is easier to contest.
- Nominee vs. successor confusion — A nomination often facilitates receipt but does not necessarily decide beneficial succession. The result depends on the asset-specific statute, nomination terms, will and succession law, so do not treat one generic rule as universal.
- No FEMA planning — If heirs are also NRIs, they need to comply with FEMA for inherited property.
The Role of Probate in Kerala
Probate is the court process of proving a will's validity. In Kerala:
- Section 213 omitted: From 20 December 2025, Section 213 no longer creates a statutory bar on establishing rights as executor or legatee without probate.
- A grant can still matter: Probate or letters of administration may still be appropriate for estate administration, a disputed will, representative title, or another applicable requirement.
- Procedure is case-specific: Jurisdiction, citation or notice, valuation, court fee, evidence and timing depend on the petition and whether anyone contests it.
Conclusion
Estate planning for NRIs is not about preparing for the worst — it is about ensuring that your family does not face legal chaos across two countries when they are already grieving. A pair of well-drafted, coordinated wills can save years of litigation and significant tax exposure.
Ready to secure your family's future? Book a consultation to create a legally sound estate plan covering your Kerala and overseas assets.
Disclaimer: Succession and tax laws vary significantly across jurisdictions and personal law. This article is for informational purposes only. Consult with qualified legal and tax advisors in both India and your country of residence for personalized advice.
Frequently Asked Questions
Do I need two separate wills as an NRI?
Two coordinated wills are often useful, but they are not automatically right for every estate. The answer depends on domicile, asset location, local succession and tax law, existing trusts or nominations, and the risk that one instrument revokes another. Obtain coordinated advice in both jurisdictions.
Is probate required for a will in Kerala?
Section 213 of the Indian Succession Act was omitted from 20 December 2025, removing its probate-before-right bar. Probate or letters of administration can still matter where a grant is sought, the will is disputed, administration is required, or an institution or another legal rule requires representative title. Check the will, asset and intended use.
Does India have an inheritance tax?
No, India abolished inheritance tax in 1985. However, the country where you reside (USA, UK, etc.) may impose estate or inheritance taxes on your worldwide assets, including Indian property. Proper estate planning can minimize this cross-border tax exposure.