An NRI executing a Will abroad faces specific procedural questions: who can witness, what formalities apply, and how the Will is recognised in Indian probate. A clear walkthrough so your Will operates effectively in India when the time comes.
An NRI's Will dealing with Indian assets must comply with Section 63 of the Indian Succession Act, 1925, which requires: writing, signature by the testator (or by someone in the testator's presence and by direction), and attestation by two or more witnesses, each of whom has seen the testator sign or has received from the testator a personal acknowledgement of the signature.
This is the same framework that applies to all non-Muslim Wills in India. The fact that the testator is an NRI executing the Will abroad does not change the formality requirements — the Will must still meet Section 63 standards to be valid for Indian probate.
Where the Will deals with assets outside India, the formalities of the relevant foreign jurisdiction also need to be met. A US Will dealing with US assets must comply with the relevant US state's formalities; an English Will must comply with the Wills Act 1837.
The two witnesses to an NRI's Will should be adults of sound mind, present at the time of execution, who either see the testator sign or receive the testator's personal acknowledgement of the signature.
Witnesses should not be beneficiaries under the Will (or spouses of beneficiaries) — Section 67 ISA makes any bequest to an attesting witness or their spouse void, though the rest of the Will remains valid.
Witnesses can be of any nationality. There is no requirement that NRI Will witnesses be Indian citizens. American friends, British colleagues, Singapore neighbours — all can validly witness an NRI's Will.
Notarisation of the Will is not strictly required for validity under Section 63 ISA. But notarisation adds evidentiary weight and is commonly recommended, particularly for Wills executed in foreign jurisdictions where witnessing protocols may be less familiar.
Many foreign jurisdictions have their own Will formalities that require notarisation or specific witness protocols (e.g., self-proving affidavits in many US states). Where the Will is meant to be valid in both the foreign jurisdiction and India, the formalities of both should be met.
We typically recommend that NRI Wills be: (a) signed by the testator before two non-beneficiary witnesses; (b) acknowledged before a notary public; (c) where deal with significant assets, apostilled or embassy-attested.
The Hague Apostille Convention provides a streamlined mechanism for authenticating foreign public documents. A document apostilled in a member country is recognised in all other member countries without need for further consular attestation.
Most major NRI destinations are Hague members: the US, UK, Canada, Australia, Singapore, the EU, and many others. India is also a Hague member (since 2005), so apostilled documents from member countries are directly recognised in India.
For an NRI Will, apostille is appropriate where the Will (or accompanying notarial certificate) is to be used in Indian probate proceedings. The apostille is obtained from the designated authority in the country of execution — typically the Secretary of State (in the US), the FCO (in the UK), or equivalent.
For Wills executed in countries that are not Hague Convention members, embassy or consulate attestation is the alternative. The Indian Embassy or Consulate in the country of execution attests the Will (or the accompanying notarial certificate), confirming the authenticity of the signature and the official capacity of the notary or other officer.
Some Gulf countries (notably UAE) are not Hague members at the time of writing. NRIs executing Wills in such countries should plan for embassy attestation rather than apostille.
Embassy attestation can also be used as an alternative to apostille for Wills from Hague-member countries, where convenient. It is sometimes faster but requires booking an embassy appointment.
Many US states have introduced 'self-proving affidavit' procedures. The witnesses sign a separate affidavit (notarised) confirming that they attested the Will in the testator's presence. Once the affidavit is in place, the Will can be admitted to probate in that US state without requiring the witnesses to testify.
For NRI Wills executed in the US that will also be used in Indian probate, the self-proving affidavit is helpful but does not replace Indian Will formalities. The Will should meet both US-state Will formalities (including the self-proving affidavit) and Section 63 ISA requirements for use in India.
Drafting an NRI Will in the US that satisfies both regimes requires care — typically the work of an attorney familiar with both systems.
An NRI Will executed abroad and complying with Section 63 ISA can be presented for probate in India in the same way as a domestically-executed Will. The probate court examines the Will's formal validity (Section 63 compliance), the testator's capacity, and the absence of suspicious circumstances.
Where the Will is in a language other than English (uncommon for NRI Wills but possible), a certified translation is required.
Where the attesting witnesses are not available to give evidence (often the case for foreign-executed Wills), the apostille or embassy attestation serves as the primary evidence of due execution. Self-proving affidavits from US states also serve this purpose.
Step 1: draft the Will under Section 63 ISA principles, with attention to the specific formalities of the country of execution. For US/UK/Canada-based NRIs, we typically partner with foreign counsel to ensure dual compliance.
Step 2: execute the Will in the presence of two non-beneficiary witnesses. Both witnesses should sign in the testator's presence and in each other's presence.
Step 3: have the testator's signature notarised by a notary public. The notary's certificate should specify that the document is a Will, attested by witnesses identified by name.
Step 4: apostille (Hague countries) or embassy attest (others). For substantial estates, this step is recommended even for NRIs uncertain whether probate will be required.
Step 5: courier the original Will to safe storage in India — typically with the NRI's family advocate, in a bank locker accessible to the executor, or with the family-side coordinator.
Mrs. Anita Verma, US citizen with OCI status, lives in San Francisco. She drafts her Indian Will (covering her Mumbai flat and Indian financial assets) with a Mumbai-based estate practitioner via remote consultation.
Execution: she signs the Will in San Francisco before two non-beneficiary friends (a US colleague and an Indian-American friend). Both sign as witnesses in her presence and in each other's presence.
Notarisation: the Will is notarised by a California notary public. The notary acknowledges the testator's and witnesses' signatures.
Apostille: Anita submits the notarised Will to the California Secretary of State for apostille (Sacramento office, mail-in or in-person). The apostille is issued within a few days.
Storage: she keeps the original Will in her safe at home; sends a certified copy with apostille to her Mumbai advocate; informs her executor (brother in Pune) of the location.
Error one: witnessed by a beneficiary (often the spouse). The witness should be a third party — failure can void the bequest to the witnessing spouse / beneficiary.
Error two: witnesses not present at the same time. Section 63 requires witnesses to attest after seeing the testator sign or hearing the testator's acknowledgement — both witnesses need to be present for execution.
Error three: no apostille / embassy attestation. The Will may be valid but proving it in Indian probate becomes substantially harder without the additional authentication layer.
Error four: the original is in a difficult-to-access location abroad. The executor in India will need the original — having it locally accessible is important.
Executing an NRI Will abroad in a way that works seamlessly in Indian probate is genuinely simple if the steps are followed. Most of our NRI clients execute their Indian Wills in their country of residence, with our coordination on the formalities.
The single most common error we encounter is witness-related — particularly when the testator chooses convenient witnesses (the spouse, a brother who is also a beneficiary) without realising the impact under Section 67. A two-minute conversation at the planning stage prevents this issue entirely.
If you are an NRI planning to execute your Indian Will abroad, please follow the protocol above carefully. The downstream value of clean execution is substantial.
Indian Embassies, Consulates, and High Commissions across the world offer document attestation services. Specific procedures vary by mission but the general framework is consistent.
Booking: most missions require online appointment booking through their consular services portal. Some offer walk-in services for specific categories of documents.
Documents: bring the Will (and any other documents to be attested), original identity documents (passport, OCI card), and the required fee (typically USD 25-50 per attestation, paid by money order or specific accepted methods).
The mission verifies the signature of the notary public who attested the document (if any) or directly attests the signature of the testator (where the Will is presented unattested but witnessed). The attestation certificate is added to the document, typically with the embassy seal.
Where the NRI cannot travel to a notary or embassy due to illness, age, or other circumstances, alternative execution arrangements may be available.
For severely ill or housebound NRIs: some jurisdictions allow witnesses to attend at the NRI's location for execution. Subsequent notarisation and attestation can then be arranged.
For NRIs unable to physically sign: the Will can be executed by another person on the testator's behalf, in the testator's presence and by direction. This requires careful documentation and should generally be supported by medical evidence of the testator's incapacity to sign.
Section 63 ISA accommodates such situations, but the standard of evidence required to prove the Will in probate may be higher. Where possible, the standard execution route is preferable.
Once the NRI Will is executed abroad with proper formalities, the original document needs to be stored safely with confirmed retrieval mechanisms. Several options are commonly used:
Family advocate in India: storage with a trusted advocate who can produce the original to the executor when required. This is the most common arrangement for NRI Wills covering Indian assets.
Bank locker accessible to the executor: locker access arrangements should ensure the executor can retrieve the Will without operational difficulty.
Will-registration with the Sub-Registrar in India: a registered Will is on public record (with privacy protections) and a certified copy can always be obtained. This adds evidentiary weight.
We typically recommend a combination — the original stored with the family advocate, a registered copy at the Sub-Registrar, and the executor briefed on the location.
NRI life is dynamic. The Will executed abroad may need updates due to changing circumstances. Replacement options:
Execute a fresh Will following the same procedure. The new Will should explicitly revoke the old one (or expressly state that it does not, where dual-Will preservation is intended).
Execute a codicil to the existing Will. The codicil follows the same formality requirements as the original Will — including the apostille / embassy attestation.
Where the NRI is visiting India, the opportunity for in-person Will updates with witnesses and registration at the Sub-Registrar should be used.
We recommend reviewing the Will every 3 years and after major life events.
Apostille fees vary by issuing authority. US Secretary of State apostilles typically cost USD 10-20; UK FCO apostille is around GBP 30. Processing time is usually 1-3 weeks by mail.
Embassy attestation fees are typically USD 25-50 per document. Processing is usually same-day at the embassy.
For NRI Wills with multiple supporting documents (the Will itself, witness affidavits, the testator's identity proofs), the cumulative attestation cost can add up. Planning the attestation in batches reduces both cost and elapsed time.
Many specialist apostille services in the US and UK offer one-stop processing for multiple documents at modest premium fees — worth considering for substantial Will-execution packages.