Answer By law4u team
Yes, property located abroad can be included in an Indian will, but there are specific guidelines and considerations that need to be followed to ensure the validity and proper transfer of the property. The process of including foreign assets in an Indian will involves a combination of Indian law (for the Indian assets and aspects) and the law of the country where the property is located (for the foreign assets). Here’s a detailed explanation of how foreign property can be included in an Indian will: 1. Legal Framework for Including Foreign Property in an Indian Will In India, wills are governed by the Indian Succession Act, 1925, which primarily deals with the testamentary succession of movable and immovable property located within India. However, the inclusion of foreign assets in an Indian will requires the following considerations: A. Indian Law and the Foreign Property You can explicitly mention your foreign property in your Indian will by specifying the assets, location, and your wishes regarding their distribution. The Indian Succession Act allows an individual to dispose of their property, both movable and immovable, within India and abroad, through a will, as long as it is valid under Indian law. However, to ensure that the will is valid for foreign property, local laws in the country where the property is located must also be considered. B. Foreign Property Under the Law of the Foreign Country Foreign property (real estate or movable assets) will generally be governed by the laws of the country where the property is located. This means that if you are dealing with real estate, bank accounts, or investments in another country, you need to comply with the local inheritance laws of that country as well. For example, in the United States, the property will be subject to U.S. laws of inheritance, and in the U.K., it will be subject to British succession laws. 2. Key Points to Consider When Including Foreign Property in an Indian Will A. Applicability of Indian Law to Foreign Assets Indian will for foreign assets: An Indian citizen can make a will under Indian law that includes foreign property, but that will will only be valid in India. The legal effect of the will on foreign property depends on whether the foreign jurisdiction recognizes and enforces the Indian will or whether separate steps are required. The property laws of the foreign country may require a separate will to be executed specifically for that jurisdiction (especially for real estate). B. Types of Foreign Assets Foreign assets typically fall into two categories: 1. Immovable Property (Real Estate): If you own property (land, house, etc.) abroad, it will be subject to the laws of the country where it is situated. In many cases, foreign countries require a separate will to deal with real estate. For example, if you own property in the United States, a U.S. will may be required to deal with the property, even if you have an Indian will. Some countries, such as the U.K., allow you to mention foreign property in your Indian will, but you must check with the respective foreign jurisdiction to ensure its enforceability. 2. Movable Property (Bank Accounts, Investments, etc.): For bank accounts, shares, bonds, etc., located abroad, you can usually include these in your Indian will. However, many banks or financial institutions may require a probate or letter of administration from the local court of the foreign country to allow the distribution of assets. This means that a separate probate application may need to be made in the foreign country. Some countries also require a separate will for movable assets, like bank accounts or investments, particularly in the case of cross-border estates. C. Probate and Enforcement of the Will A probate is a court order that validates a will and gives it legal effect. The probate of an Indian will is granted by an Indian court. However, if the will includes foreign property, the Indian probate may not be sufficient for the foreign jurisdiction to recognize the will. In some countries, such as the U.K., the U.S., and Australia, a foreign grant of probate or letter of administration might be required to deal with the foreign assets. D. Separate Wills for Foreign Assets Dual wills: It’s often advisable to make separate wills for Indian property and foreign property. While the Indian will will be valid for Indian assets, a separate will executed according to the laws of the foreign country may be required for property located there. Avoiding conflict: Having a separate will for foreign assets ensures that there is no conflict of jurisdiction between the two wills, especially when it comes to immovable property. The two wills should ideally specify which assets they cover, and a provision should be included to ensure that the two wills don’t contradict each other. However, if both wills are properly drafted and the executor of each will is clearly defined, there should be no issue. E. Language and Formalities It is important that the will is written in the official language of the foreign country where the property is located and follows local formalities, such as witnesses, notarization, etc., for that country. In some cases, the will may need to be translated into the local language of the foreign country if it is written in a language not recognized by the local authorities. 3. Example of How Foreign Property Is Handled in an Indian Will Suppose an Indian citizen, Mr. Kumar, owns a house in the United States and a bank account in the U.K., in addition to his property in India. Mr. Kumar may write an Indian will in which he specifies his wishes regarding the distribution of his Indian property. He can also mention the foreign property (the U.S. house and U.K. bank account) in the Indian will, directing that they be passed to a particular beneficiary. However, for the U.S. property, Mr. Kumar may also need to make a separate will that complies with U.S. property laws, because U.S. law requires the use of a local probate court for the transfer of real estate. Similarly, for the U.K. bank account, Mr. Kumar may need a separate probate in the U.K. to access and distribute the funds from the bank account. Thus, while an Indian will can certainly include foreign assets, there might be a need for separate probates or wills in the foreign country to ensure the smooth transfer of those assets. 4. Conclusion Yes, you can include foreign property in an Indian will, but you must be mindful of the legal requirements both under Indian law and the laws of the foreign country where the property is located. In many cases, it is recommended to execute a separate will for foreign property to ensure that the will is enforceable in the foreign jurisdiction. You should also consult with legal professionals experienced in both Indian and foreign estate laws to ensure that your will is valid and your assets are distributed according to your wishes without complications.
