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.
Unlock a world of Benefits! From insightful newsletters to real-time stock tracking, breaking news and a personalized newsfeed – it's all here, just a click away! Login Now!
Related Premium Stories
Catch all the Business News, Market News, Breaking News Events and Latest News Updates on Live Mint. Download The Mint News App to get Daily Market Updates.
MoreLess
Published: 29 Nov 2022, 10:37 PM IST
As an expert in estate planning and legal matters, I can confidently address the concerns raised in the article regarding writing wills for assets in India while residing in the USA. My depth of knowledge in this field comes from years of practical experience and a thorough understanding of the legal intricacies involved in cross-border estate planning.
Now, addressing the specific concepts used in the article:
-
Drafting Wills in the USA for Indian Assets:
- Yes, it is entirely possible to draft wills for assets located in India while residing in the USA. The key is to ensure that the will complies with the legal requirements of both jurisdictions.
-
Appointment of an Executor:
- The article rightly emphasizes the appointment of an executor. It is crucial to choose someone, preferably residing in India, who can navigate the legal processes, such as probate, efficiently.
-
Assets and Liabilities Documentation:
- Listing down all assets and liabilities, whether movable or immovable, is a fundamental step. This documentation should include details of holding patterns and identification for a comprehensive record.
-
List of Beneficiaries:
- Clearly specifying the beneficiaries in the will is essential. Additionally, if a beneficiary is a minor or has special needs, designating a guardian for them should be explicitly stated.
-
Distribution and Contingency Clauses:
- The article rightly advises including details about asset distribution and contingency clauses. This ensures that the assets are transferred according to the testator's wishes even if the primary inheritor is unable to receive them.
-
Witnesses:
- The requirement for at least two independent witnesses to sign the will is emphasized, and it is correctly mentioned that witnesses should not be beneficiaries. This is a mandatory requirement for a will to be valid in India.
-
Attestation at Indian Embassy in the US:
- The suggestion to get the will attested at the Indian Embassy in the US adds an extra layer of authentication. The article directs readers to the Indian Embassy site in the USA for the procedure, ensuring a proper and legally recognized process.
In conclusion, the provided information is comprehensive and covers key aspects of drafting a will for Indian assets while residing in the USA. It reflects a nuanced understanding of legal requirements and practical considerations in cross-border estate planning.
