I am an Indian citizen living in the US. I am planning to move back to India to settle there permanently. I own property and other assets in the US, and have already executed a will that covers these assets. Once I relocate, will I be required to bring these assets – or the proceeds from selling them – to India? Also, will I need to make a new will?
—Name withheld on request
If you have acquired assets (such as immovable property, shares, etc.) or earned income outside India when you were residing overseas, then you will not be required to liquidate the assets or repatriate the sale proceeds or income to India when you move back to India from the US. This includes assets inherited by you when you were residing abroad. You may continue to hold and transfer these assets and invest the income even after you become an Indian resident.
This fundamental principle emerges from Section 6(4) of the Foreign Exchange Management Act, 1999, which grandfathers holding of assets by ‘persons resident in India’ which were acquired, held or owned when the individual was a ‘person resident outside India’ as well as permits such assets and their income to be transferred or invested overseas.
However, once you return to India and acquire fresh income overseas which is not attributable to those assets which you held when you were abroad, then you will be bound to repatriate the same to India within 180 days.
As regards your query on making a fresh will when you return to India, it is advisable that you make a separate will for your Indian assets (whether existing or which may be acquired by you at any time before your demise) while your existing will in the US can continue to cover your US assets.
Generally, it is recommended that individuals with assets in different countries make separate wills for each jurisdiction to ensure they comply with the specific formalities and legal requirements of that jurisdiction. Additionally, appointing different executors for assets in different jurisdictions can simplify the administration of the estate and avoid potential complications after death.
The above is based on a general interpretation of the various legal provisions, so do consult a lawyer to understand the application of the position to the facts and circumstances of your case, especially considering the complexity of cross-border asset management and estate planning.
Shaishavi Kadakia is a partner and Lily Poonia is an associate at Cyril Amarchand Mangaldas, Mumbai.
