When an NRI dies with a Will executed and probated abroad, the Will still needs to operate in India for the Indian-asset part of the estate. The process is called 'exemplification' under Section 228 of the Indian Succession Act. A clear guide to the procedure.
Suppose a US-based NRI dies in San Francisco leaving a Will that has been probated by the California Superior Court. The Will deals primarily with US assets but also has a residual clause covering Indian assets — a Mumbai flat and some NRE deposits.
What happens to the Indian assets? The California probate does not, by itself, give the executor authority over Indian assets. Indian banks and registrars need an Indian-side process — and that process is governed by Section 228 of the Indian Succession Act, 1925, dealing with the 'exemplification' of foreign probates.
This article walks through the Section 228 process — how a foreign-probated Will is recognised in India, what documents are required, the typical timeline and cost, and the alternatives where exemplification is not the most efficient path.
Section 228 of the Indian Succession Act, 1925 provides that where a Will has been proved and deposited in a court of competent jurisdiction outside India, and a properly authenticated copy of the Will is produced before an Indian court, the court may, on production of evidence of the foreign probate, grant probate or letters of administration in India to the same person.
The 'competent jurisdiction outside India' typically means the court of the country where the testator was domiciled or where the Will was executed. For US Wills, this is typically a state probate court (county-level superior court in California, for example, or surrogate's court in New York).
The 'properly authenticated copy' requires that the foreign probate (the grant of probate document issued by the foreign court) be apostilled or embassy-attested for use in India.
The first prerequisite for Section 228 application is that the Will has been probated in the foreign jurisdiction. The executor (or family) initiates probate proceedings in the foreign country, and a grant of probate is issued by the foreign court.
Foreign probate processes vary in complexity and time. US probate typically takes 6-12 months for uncontested matters. UK probate (England and Wales) takes 8-16 weeks. UAE probate via DIFC Wills Court takes 4-8 weeks.
Once the foreign grant of probate is issued, the executor obtains certified copies (typically multiple — they will be needed at various points in the Indian process).
The certified copy of the foreign probate (and typically the certified copy of the Will itself) must be authenticated for use in India. For Hague Convention countries, apostille is appropriate; for non-Hague countries, embassy attestation by the Indian mission in that country.
The apostille / embassy attestation confirms that the foreign probate is a genuine court document of the issuing jurisdiction. Indian courts will not act on the foreign probate without this authentication layer.
The process typically takes a few weeks. For US Wills, apostille is obtained from the relevant Secretary of State; for UK, from the FCO; for non-Hague countries, from the Indian Embassy / Consulate / High Commission.
With the authenticated foreign probate in hand, a petition is filed before the Indian probate court of the jurisdiction where the Indian assets are located. For a Mumbai flat, this is the Bombay High Court (which has probate jurisdiction).
The petition seeks Indian probate (or, technically, the grant of letters of administration with the Will annexed) under Section 228. It cites the foreign probate as the basis for the petition.
The petition is supported by: the authenticated foreign probate, the authenticated copy of the Will, the death certificate, the executor's identity and address proof, a list of the Indian assets, and the prescribed valuation.
The Indian probate court examines the petition. Standard probate procedures apply: notice is given to the legal heirs (in case any of them is in India), citations may be published in newspapers, and the court satisfies itself that the foreign probate is genuine and the procedural requirements are met.
For uncontested matters, the Indian probate is typically granted within 4-8 months of filing. The court fee is calculated on the value of the Indian assets covered (not the full worldwide estate).
Once the Indian probate is granted, the executor has authority to deal with the Indian assets in the same way as if the Indian probate had been granted on a domestically-executed Will.
Total time from death to Indian probate via Section 228: typically 12-24 months. This includes time for the foreign probate, the apostille / embassy attestation, the Indian petition, and the Indian court proceedings.
Costs: foreign probate costs depend on the jurisdiction (US can be expensive, UK moderate, UAE/DIFC efficient). Apostille / embassy attestation costs are modest (a few hundred dollars). Indian court fees depend on the value of Indian assets (typically 2-3% of the value, capped by state-specific rules).
Indian legal fees for the Section 228 application: typically ₹50,000 to ₹3 lakh depending on complexity. Total Indian-side cost: 3-7% of the Indian asset value.
Section 228 works, but it takes time. For NRIs with substantial Indian assets, the 12-24 month timeline means the Indian family waits long for the inheritance.
An alternative — drafting an Indian Will alongside the foreign Will, with explicit preservation — allows Indian probate to proceed independently of the foreign probate. The Indian probate can be obtained in 4-9 months without waiting for foreign proceedings.
This is why we strongly recommend dual Wills for NRIs with Indian assets above a meaningful threshold (typically ₹50 lakh or more). The administrative speed at post-death substantially exceeds the upfront effort of drafting two Wills.
Section 228 is appropriate where: the NRI did not draft a separate Indian Will; the Indian assets are modest enough that creating a separate Indian Will was not undertaken; the foreign-executed Will is the only available basis for Indian-asset administration.
Section 228 is also used in unexpected death situations — where the NRI was planning to draft an Indian Will but died before doing so, leaving only a foreign Will.
In these scenarios, Section 228 is the workhorse procedure and works well, just slowly.
An alternative to Section 228 is to apply for Indian probate directly on the original Will (without first obtaining foreign probate). This is sometimes possible where the Will is executed in compliance with Section 63 ISA, the original is available, and the Indian court considers it has jurisdiction.
The Indian probate court examines the Will's validity and the procedural compliance. Where the Will is otherwise valid, this can be a faster route than waiting for foreign probate first.
The choice between Section 228 (foreign probate first) and direct Indian application depends on the specifics — where the foreign probate is needed for foreign-asset administration anyway, the dual application makes sense; where only Indian assets are at issue, direct Indian application can be faster.
Mr. Suresh Kapoor, US citizen with OCI status, dies in Los Angeles leaving a Will that has been probated by the California Superior Court (Los Angeles County). The Will leaves: US assets to his US-resident wife and children; Indian assets (a Goregaon flat worth ₹4.5 crore, NRE deposits of ₹35 lakh, mutual funds of ₹70 lakh) to his sister in Bengaluru.
Process: California probate is obtained (10 months). Certified copy of the probate and the Will are apostilled by the California Secretary of State (3 weeks).
Mumbai application: Section 228 petition filed in the Bombay High Court. Court fees calculated on the Indian asset value (approximately 2.75% in Maharashtra, capped). Counsel handles citations and procedural compliance. Indian probate granted approximately 7 months after filing.
Total time from death to Indian probate: approximately 19 months. Indian-side legal and court costs: approximately ₹15-18 lakh on the ₹5.5 crore Indian estate.
Recommendation 1: where Indian assets are substantial, draft an Indian Will alongside the foreign Will. The dual-Will approach avoids the long Section 228 timeline.
Recommendation 2: if relying on Section 228, plan for the multi-jurisdiction process from the start. Coordinate Indian and foreign counsel.
Recommendation 3: keep certified copies of foreign probate documents readily available — multiple copies will be needed for the Indian apostille and court processes.
Recommendation 4: engage Indian counsel familiar with cross-border probate. The procedural detail matters, and inexperienced counsel can cause significant delays.
Section 228 exemplification is a workable procedure that we handle regularly for NRI families. It is slower than dual-Will planning and somewhat more expensive, but it works when needed.
Our standard advice to NRI clients with Indian assets above ₹50 lakh is: invest in a separate Indian Will, properly drafted under Section 63 ISA, expressly preserving the foreign Will. The cost is modest; the time savings post-death are substantial.
If you are dealing with a Section 228 situation now — an NRI relative has died abroad and you need to bring the Will to India for probate — we are happy to walk you through the process. The first hour of consultation typically clarifies the practical path.
Court fees for probate / Section 228 applications are state-specific and based on the value of the assets covered by the probate. For Maharashtra, the rate is approximately 2.5-3% of the value, capped at a ceiling for very large estates.
For Delhi and the National Capital Region, court fees are generally lower than in Maharashtra. For Karnataka, the rates vary by jurisdiction. The state-specific computation can be complex for substantial multi-asset estates.
Engaging counsel familiar with the specific state's court fee calculation is important. Mis-stating the value or applying the wrong rate can lead to delays in the probate application or under-payment that must be corrected later.
Where the foreign Will has been probated abroad, Section 228 is the typical route. Where the foreign Will has not been probated abroad (perhaps the deceased's foreign assets are minimal or the foreign jurisdiction did not require probate), the Indian court may grant Letters of Administration with the Will annexed.
Letters of Administration with Will annexed allows the Indian court to admit the foreign Will to probate directly, without relying on prior foreign court action. This route is sometimes faster where the foreign jurisdiction's processes would themselves be lengthy.
The choice between Section 228 and Letters of Administration depends on the specific circumstances — whether foreign probate has been or will be obtained, the relative timelines, and the cost considerations across both jurisdictions.
The Section 228 process inherently requires coordination between foreign counsel (handling foreign probate) and Indian counsel (handling Section 228 application). Effective coordination produces better outcomes for the family.
Typical coordination points: timing of foreign probate to support Indian filing; ensuring the foreign probate document includes all necessary identifying information; coordinating the apostille / attestation steps; addressing any discrepancies between the foreign Will copy and Indian copy.
We routinely act as Indian counsel in coordinated cross-border probate situations, working with US, UK, Canadian, Australian, and Gulf-based estate counsel. The coordinated engagement typically produces a 6-12 month timeline saving compared to uncoordinated separate proceedings.
During the 12-24 months of cross-border probate, the deceased's Indian-source income continues — interest on NRO accounts, rental from property held jointly with the estate, dividends from inherited shares.
This income, earned during the estate-administration phase, is taxable in the hands of the executor/administrator under Section 168 of the Income Tax Act. The administrator files returns for this 'estate income' until the assets are formally distributed.
Coordinated tax compliance during this period — proper filing of estate income returns and avoidance of penalty for non-compliance — is essential. The Indian chartered accountant handling the deceased's tax matters typically continues during the administration phase.