Two-Will Strategy for Australia and India — Cross-Border Estate Planning

The Problem with One Global Will

Australian residents with assets in India — ancestral property, bank deposits, mutual funds, land holdings — face a cross-border estate problem. A single will executed in Australia technically covers worldwide assets, but enforcing it in India requires a process called "reprobate" that can add 12 to 24 months to the estate settlement.

Reprobate works like this: the Australian executor obtains a Grant of Probate from the relevant state Supreme Court in Australia, then files that grant with an Indian High Court or District Court to obtain a secondary (ancillary) probate order. The Australian grant must be apostilled by DFAT, translated if needed, and formally filed in the Indian jurisdiction where the assets are located. Indian courts then verify the foreign will against Indian succession laws before issuing their own grant.

During this entire process, Indian bank accounts stay frozen, property can't be sold or transferred, and mutual fund holdings can't be redeemed. For families already dealing with a death abroad, this timeline is devastating.

How the Two-Will Strategy Works

The solution estate planning specialists recommend is straightforward: maintain two separate wills, one for each jurisdiction.

Will #1 (Indian will): Drafted under Indian law, executed according to Indian succession requirements, and ideally registered with a local Sub-Registrar. This will covers only Indian assets — property, bank accounts, share portfolios, mutual funds, and any other holdings located within India.

Will #2 (Australian will): Drafted under Australian law, executed locally, covering Australian assets — bank accounts, superannuation, property, share registries, and personal effects.

When the person dies, probate can run concurrently in both countries. The Australian executor applies for a Grant of Probate in Australia using the Australian will. Simultaneously, the named executor or legal representative in India applies for probate or a Succession Certificate using the Indian will. Neither process waits for the other.

This parallel execution lets the two workstreams proceed concurrently and can avoid waiting for recognition of the Australian will in India. Actual settlement time depends on the courts, the assets, and any objections.

Critical Drafting Rules

The two wills must be carefully drafted to avoid one revoking the other. Standard will-making practice includes a revocation clause ("I revoke all former wills"). If the Indian will contains this clause without qualification, it technically revokes the Australian will, and vice versa.

The solution: each will explicitly limits its scope. The Indian will states it covers only assets in India and does not revoke any will covering assets in other jurisdictions. The Australian will mirrors this restriction.

Both wills should be drafted by solicitors familiar with cross-border estates — the Indian will by an Indian advocate experienced in NRI estate matters, and the Australian will by an Australian solicitor who understands the interaction.

What Happens Without a Will (Intestate Succession in India)

If an Australian citizen dies without a valid Indian will and holds assets in India, intestate succession laws apply — and these are determined by the deceased's religion, not their nationality.

Hindus, Sikhs, Jains, and Buddhists: The Hindu Succession Act, 1956 governs. Immovable property devolves equally among Class I heirs (spouse, children, and mother). If no Class I heirs exist, it passes to Class II heirs (father, siblings).

Christians and Parsis: The Indian Succession Act, 1925 applies. A surviving spouse with children receives one-third of the estate; the children share the remaining two-thirds equally.

Muslims: Shariat-based personal laws govern, with strictly defined fractional shares for specific relatives.

There's a further complication: under Section 5(2) of the Indian Succession Act, movable property (bank deposits, stocks, mutual funds) follows the succession laws of the country where the deceased was domiciled — meaning Australian law applies to Indian bank accounts, while Indian law governs Indian real estate. This creates a split jurisdiction within a single estate.

The Power of Attorney for Remote Execution

Managing Indian court proceedings from Australia is impractical. Most families appoint a trusted representative in India — a family member, friend, or legal firm — through a Power of Attorney (PoA).

For the PoA to be legally valid in India, it must be:

1. Signed before an Australian Notary Public
2. Apostilled by DFAT in Australia
3. Registered at the jurisdictional Sub-Registrar's office in India

The PoA allows the representative to appear in Indian courts, file documents, open estate accounts, and eventually execute property transfers on the heir's behalf. Without it, the Australian heir would need to travel to India for every court hearing and municipal filing — a practical impossibility for most families.

The Australian Dies in India Family Emergency Guide includes the complete cross-border estate framework, covering both jurisdictions from day one through final asset distribution.