How the Repealing and Amending Act, 2025 Affects Inheritance
The recent legislative changes have removed many outdated provisions and streamlined parts of inheritance law. For a large number of simple estates, the result is welcome: fewer formalities, quicker transfers, and lower transaction costs. But the same simplification can create problems when estates are complex, spread across jurisdictions, or involve non-resident Indians (NRIs).
What probate means — and why it still matters
Probate is the legal process that confirms a will and authorizes executors to settle an estate. It gives banks, land registries, and other institutions formal assurance that the person handling the estate has the legal right to do so. Skipping probate may save time initially, but it removes that formal legal certificate that many parties rely on.
When probate is usually required
- Immovable property transfers (land, apartments) where title needs clearing.
- Large or complex estates with multiple beneficiaries or creditors.
- Assets held in the deceased’s sole name such as bank accounts, investments, or shares in private companies.
- Situations where the will’s validity or executor’s appointment is likely to be challenged.
- Cross-border assets or foreign bank accounts that often demand court-certified proof of authority.
Why NRIs and complex estates should be cautious
For NRIs and estates with foreign elements, skipping probate can lead to avoidable headaches:
- Jurisdictional complications: Foreign institutions often require court-issued probate from the deceased’s home jurisdiction or a local equivalent.
- Delay in asset transfer: Without formal probate, banks and registries may refuse transactions, resulting in long delays and additional documentation requests.
- Higher risk of disputes: Absence of probate can make it easier for disgruntled relatives or creditors to contest distributions.
- Tax and compliance issues: Transferring or selling foreign assets without clear legal authority can trigger tax, reporting, or compliance penalties in more than one country.
Common problems families face when probate is bypassed
- Banks freezing accounts or demanding indemnity bonds from executors.
- Land registries declining transfer of title without probate or certified succession documents.
- Delays that increase estate administration costs and erode asset value (e.g., unpaid dues, maintenance, taxes).
- Confusion over the rightful heirs, especially where multiple wills or informal documents exist.
Practical checklist for executors and heirs
- Assess the estate: List assets, liabilities, locations (domestic vs foreign), and whether property is jointly held.
- Consult an estate lawyer: Get legal advice early, particularly for NRIs or multi-jurisdiction estates.
- Preserve documents: Secure the original will, property titles, bank statements, insurance policies, tax returns, and ID proofs.
- Check institutional requirements: Ask banks, registries, and investment houses what they need — some accept affidavits, others insist on probate.
- Consider probate even if optional: If there are foreign assets, contested claims, or significant immovable property, applying for probate can prevent later disputes.
- Plan for taxes and clearances: Obtain income-tax and municipal clearances before transfer or sale of assets.
- Keep beneficiaries informed: Transparency reduces surprises and lowers the chance of litigation.
Tips for NRIs handling inheritance in India
- Use a local legal representative or lawyer with experience in cross-border estates.
- If you cannot return to India, prepare a valid power of attorney (POA) — but note that some authorities still prefer probate over POA for critical transfers.
- Check whether the will needs registration or attestation for use abroad; different countries have different requirements.
- Be mindful of double probate — you might need court recognition in both the country where assets sit and the country where the deceased resided.
Estate planning lessons from the change
The Act simplifies processes, but it also underlines the value of clear, proactive estate planning:
- Maintain a registered will: A properly drafted and registered will reduces ambiguity and the likelihood of disputes.
- Use nominations and joint ownership wisely: These tools can speed transfers but may have tax or ownership implications.
- Review cross-border holdings: Keep clear records of where assets are held and how they should be handled after death.
- Update documents regularly: Changes in family circumstances, laws, or residency should prompt a review of wills and powers of attorney.
Bottom line
The Repealing and Amending Act, 2025 makes inheritance simpler for many, but simplicity is not always the same as certainty. For straightforward, small estates, families may find probate unnecessary. For NRIs, immovable property, large or contested estates, or assets in multiple countries, obtaining probate or equivalent court authority remains a wise safeguard. A measured, legally informed approach will save time, money, and stress in the long run.