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I live in the US with my husband and daughter. We have assets in India that we have purchased and inherited over the years. My daughter has suggested that we make our respective wills in the USA. We have movable as well as immovable assets in India. Can we write a will while we are in the USA for our assets in India?
Is it necessary for witnesses to sign our will? What are the other precautions to be taken while writing a will from overseas with respect to assets and liabilities in India?
—Name withheld on request
We assume that you are a Hindu and your properties are self-earned/ self- created. Further, these properties are not ancestral in nature. Also, we assume that there is no right or interest of any other person in the property and that the same were held only by you.
You can draft your respective will while you are in the USA for your Indian assets where you have to include the following:
a. Appointment of an executor: The executor, who executes the will, can be of any origin but preferably residing in India since he/she will have to take care of legal process of probate before transferring assets to the beneficiary of the will. Further, it is a suggestion to have an alternate executor just in case something untoward happens to the first executor.
b. List down assets and liabilities: You should pen down all your current assets, both immovable and movable, along with their holding patterns and identification. At the same time, do identify all current liabilities, if any.
c.List of beneficiaries: One should list the persons who will be benefitting from the will. In case the beneficiary is a minor or a person with special needs, one should mention who will be appointed as the guardian for such a person.
d. Distribution: Do ensure to add in who will be inheriting the assets and the exact distribution that is to be made to them. Also make sure to add in the contingency clauses i.e. who will inherit the asset in case the first inheritor passes away.
e. Witness: At least two independent witnesses should sign the Will. This is a mandatory requirement for a will to be valid in India. It is crucial that the witnesses should not be beneficiary in the will. Both the witnesses should sign the will in presence of testator / testatrix (person who has made the will)
You can get the will attested at the Indian Embassy in the US. The procedure of the same is mentioned on the Indian Embassy site in the USA.
Neha Pathak is head of trust & estate planning at Motilal Oswal Private Wealth.
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