Wills & Estates Lawyers India 2026: Probate Optional After Section 213 Repeal, Executor Duties, TDS & FEMA Practicals

The landscape for wills & estates lawyers India practitioners and their clients shifted fundamentally when the Repealing & Amending Act, 2025 omitted Section 213 of the Indian Succession Act, 1925, making probate optional rather than mandatory in a wide range of succession scenarios. Executors, heirs and NRIs now face an immediate operational question: if probate is no longer compulsory, what evidence must they present to banks, sub-registrars and depositories to act on a will? This guide provides the practical checklists, tax compliance steps and FEMA repatriation procedures that follow from the 2026 changes, structured so that private clients, family office advisors and probate practitioners can act with confidence.

Every statutory and regulatory claim below is referenced to the Gazette of India, Press Information Bureau, Reserve Bank of India or Income-tax Department primary sources.

Quick Answer, Is Probate Mandatory in India After the Section 213 Repeal?

No. The Repealing & Amending Act, 2025 (Act No. 37 of 2025), as published in the Gazette of India, omitted Section 213 of the Indian Succession Act, 1925. The Press Information Bureau confirmed this omission in its official factsheet on the Act. In practice, probate is now optional for many estates, but “optional” does not mean “unnecessary.” Third parties such as banks, sub-registrar offices and depositories retain discretion to demand whatever evidence of title they consider prudent before releasing assets or registering transfers.

• For executors: You may now act on the strength of the will itself, supported by an evidence bundle (see checklist below), without first obtaining a court-granted probate in many situations.
• For banks and registries: Internal policies, not statute, will dictate what documents they accept. Expect variation between institutions and between states.
• For NRIs and cross-border estates: FEMA repatriation requirements and TDS obligations on property sales remain unchanged by this repeal. Compliance with RBI and Income-tax Department rules is still mandatory regardless of whether probate is obtained.

What the Section 213 Repeal Actually Changed, Statutory Facts

Section 213 of the Indian Succession Act, 1925 historically provided that no right as executor or legatee could be established in any court unless a court of competent jurisdiction in India had granted probate of the will, or had granted letters of administration with the will annexed, under which the right was claimed. The provision applied to wills made by certain categories of testators and had practical force primarily in the Presidency towns (Mumbai, Kolkata, Chennai) and for communities governed by Part IX of the Act.

The Repealing & Amending Act, 2025, the periodic legislative housekeeping exercise that removes obsolete or spent provisions, included Section 213 among the provisions omitted from the Indian Succession Act, 1925. The Act also made a consequential substitution in Section 370 of the Indian Succession Act to reflect this deletion.

Comparison: Pre-2026 vs Post-2026

Industry observers expect the operational adjustment period to last well into 2027, as individual banks, state sub-registrar offices and NSDL/CDSL develop standardised documentary requirements that replace the probate-as-default approach.

Practical Effect for Executors, Administrators and Heirs

The repeal alters the starting assumption for wills & estates lawyers India practitioners advise on: an executor named in a valid will can now, in principle, approach banks, registries and other custodians directly. The executor’s authority derives from the will itself, a position that was always the theoretical legal position but was, in practice, overridden by Section 213’s court-grant requirement.

That said, third-party gatekeepers introduce friction. Banks are risk-averse institutions. Sub-registrar offices follow state-level registration rules. Depositories have their own participant regulations. None of these entities are obliged to accept an executor’s claim at face value simply because Section 213 has been repealed.

Executor Duties Immediately After Death of the Testator

1. Secure the original will and confirm you are named as executor.
2. Obtain the death certificate from the local municipal authority.
3. Prepare an executor affidavit, a sworn statement confirming identity, relationship, awareness of the will’s contents, and willingness to act.
4. Notify all banks and financial institutions where the deceased held accounts, lockers or deposits, in writing, citing the will and attaching the death certificate.
5. Compile a full asset inventory: bank accounts, immovable properties, securities/demat accounts, insurance policies, vehicles, digital assets.
6. Check for outstanding tax liabilities, income tax returns due, capital gains exposure, and pending assessments.
7. If the deceased was an NRI or if any heir is an NRI, instruct a Chartered Accountant early to prepare for FEMA repatriation compliance.

Risk Checklist: When Banks and Registries May Still Insist on Probate

• High-value accounts: Banks may refuse to release balances above internal thresholds (commonly Rs 5–20 lakh, varying by bank) without probate or a court order.
• Multiple claimants: If more than one person claims entitlement, whether under the will or by intestate succession, banks will almost certainly demand a court order before releasing funds.
• Immovable property in conservative jurisdictions: Sub-registrar offices in certain states historically followed strict probate requirements and early indications suggest some will continue to do so by internal circular.
• Demat accounts and securities: NSDL and CDSL participant rules may require transmission applications with specific supporting documents; probate has historically been part of that bundle.
• Insurance proceeds: Where a nominee is not recorded, insurers may request probate before settling claims to non-nominee heirs.

When to Obtain Probate or Letters of Administration, Decision Flowchart

Even though Section 213 no longer mandates probate, it remains the most authoritative evidence of testamentary title. The practical question for executors and heirs is whether the cost and delay of probate proceedings are justified by the estate’s composition, the number of potential claimants, and the receptiveness of relevant third parties.

Checklist to Decide: Seven Questions Every Executor Should Ask

1. Is the will contested or likely to be contested by any family member, creditor or third party?
2. Does the estate include immovable property that must be transferred through a sub-registrar office?
3. Is the sub-registrar office located in a state or city that historically required probate (e.g., Mumbai, Kolkata, Chennai)?
4. Does the estate include demat accounts or listed securities held through a depository participant?
5. Are there multiple heirs or beneficiaries with potentially conflicting interests?
6. Is the total estate value above the threshold at which banks and institutions tend to require court orders?
7. Is any heir or beneficiary an NRI who will need to repatriate sale proceeds, and would a probate order simplify FEMA/bank compliance?

Decision rule: If the answer to two or more of these questions is “yes,” the likely practical effect will be that obtaining probate or letters of administration saves more time and cost downstream than it adds upfront.

Sample Decision Outcomes, Three Scenarios

• Scenario A, Sole movable assets in one bank: A testator leaves a single bank account (balance Rs 8 lakh) to one named heir. The executor approaches the bank with the original will, death certificate, executor affidavit and an indemnity bond. The bank releases the funds without probate. Probate: not required.
• Scenario B, Residential flat in Mumbai plus bank accounts: The estate includes a flat in Mumbai and accounts across three banks. The sub-registrar office requests probate before registering the transfer. Two of the three banks accept the executor’s documents; one refuses. Probate: advisable, to satisfy the registry and the recalcitrant bank in a single proceeding.
• Scenario C, Contested will, NRI heirs, multiple properties: Two siblings dispute the will’s validity. The estate includes properties in two states, demat accounts and an NRO balance the NRI heir wishes to repatriate. Probate: essential, the court order will resolve the contest, provide binding title evidence to registries, and simplify the NRI’s FEMA compliance documentation.

Titles, Registries and Bank Practice, How to Evidence Rights Without Probate

For executors and heirs proceeding without probate, the evidence bundle presented to banks and registries must be comprehensive enough to satisfy institutional risk departments. The following documents form the core “non-probate evidence package” that wills & estates lawyers India specialists typically recommend:

• Original will (or notarised true copy if the original is lodged with a court or safe deposit).
• Death certificate issued by the municipal or local authority.
• Executor affidavit, notarised, stating executor identity, will details, beneficiaries and assets.
• Indemnity bond, executed by the executor (and in some cases, by the beneficiaries), indemnifying the bank against any future claims arising from release of funds without probate.
• Identity documents of executor and beneficiaries (Aadhaar, PAN, passport for NRIs).
• No-objection declarations from all named beneficiaries confirming they do not dispute the executor’s authority.

Registry Practice, State Variation

Registration of immovable property transfers is governed by state-level registration departments. There is no uniform national rule on whether a sub-registrar will accept executor documents without probate. In practice, evolving banking and registry rules in India mean that executors should confirm requirements with the specific sub-registrar office before scheduling a transfer.

Dealing with Legacy Securities, Shares and Demat Accounts

Transmission of securities held in demat form is processed through the depository participant (DP). Participants follow NSDL/CDSL operating instructions, which have historically listed probate or letters of administration among the required documents for transmission to a legal heir. Executors should contact the DP directly, citing the Section 213 repeal, and confirm whether updated transmission guidelines have been issued. Where the DP insists on a court order, a succession certificate from a civil court may be an alternative to full probate proceedings.

Tax Practicals for Heirs and Buyers, TDS, Capital Gains and Forms

The Section 213 repeal does not alter any provision of the Income-tax Act, 1961. When inherited immovable property is sold, both the buyer and the selling heir face specific tax obligations that must be fulfilled regardless of whether probate was obtained.

TDS on Sale by Heirs, Who Deducts and When

Under Section 194-IA of the Income-tax Act, any buyer of immovable property (other than agricultural land) must deduct tax at source at the rate of 1% of the total consideration if the sale consideration is Rs 50 lakh or more. This obligation falls on the buyer, not the seller. The buyer must:

1. Deduct 1% TDS from the payment to the seller at the time of credit or payment, whichever is earlier.
2. Deposit the TDS amount with the government by filing Form 26QB (challan-cum-statement) within 30 days from the end of the month in which the deduction is made.
3. Issue Form 16B (TDS certificate) to the seller within 15 days of filing Form 26QB.

Buyers should note: the obligation under Section 194-IA applies whether the seller inherited the property or purchased it. The inheritance itself is not a taxable event, no withholding tax in India arises at the point of succession. Tax crystallises only upon a subsequent transfer or sale.

Capital Gains and Tax Filing by Heirs, Steps and Timing

When an heir sells inherited property, capital gains are computed using the original cost of acquisition to the deceased (not the market value at the date of death). The holding period for determining whether gains are long-term or short-term is also counted from the date the deceased originally acquired the property.

1. Determine the cost of acquisition to the original owner (the deceased). If the property was acquired before 1 April 2001, the heir may adopt the fair market value as on 1 April 2001 as the cost.
2. Apply the Cost Inflation Index (CII) for the year of sale to compute indexed cost of acquisition.
3. Compute capital gains: Sale consideration minus indexed cost of acquisition minus cost of improvements (indexed) minus transfer expenses.
4. If long-term (held for more than 24 months for immovable property), long-term capital gains tax applies. If short-term, gains are added to ordinary income.
5. File the return of income by the applicable due date, disclosing the capital gains and claiming any exemptions (e.g., under Sections 54, 54EC or 54F, if reinvestment conditions are met).

Sample Calculation: Sale by Heir

The heir claims the TDS of Rs 1,20,000 as a credit against the final tax liability when filing the return of income. If the heir qualifies for a reinvestment exemption (e.g., purchase of a new residential property under Section 54), the taxable capital gains reduce accordingly.

NRIs and Cross-Border Issues, FEMA, Repatriation Limits and Bank Practice

For NRI heirs and Persons of Indian Origin (PIOs), the Section 213 repeal simplifies one step, they may not need to obtain probate before dealing with inherited assets. However, the more complex layer of NRI inheritance repatriation compliance under FEMA and RBI regulations remains entirely unaffected. Wills & estates lawyers India specialists frequently encounter NRI clients who assume that inheriting property or funds is the hardest part. In practice, the repatriation of sale proceeds is where the regulatory complexity lies.

How to Repatriate Sale Proceeds: Documents and CA Certificate

Under RBI’s FEMA framework, an NRI or PIO may repatriate funds from an NRO (Non-Resident Ordinary) account, subject to an annual ceiling of USD 1 million per financial year. Repatriation of sale proceeds of immovable property acquired by way of inheritance is permitted, subject to conditions specified in the applicable FEMA notifications. The key procedural requirements are:

1. Sale proceeds must be credited to the NRI’s NRO account in India.
2. The NRI must obtain a Chartered Accountant certificate (in the prescribed format, commonly referred to as Form 15CA/15CB certification) confirming that all applicable taxes have been paid or provided for, and that the remittance is in conformity with FEMA provisions.
3. Submit the CA certificate along with documentary proof (sale deed, TDS certificates, tax computation, PAN) to the authorised dealer bank (AD bank) holding the NRO account.
4. The AD bank processes the remittance from NRO to the NRI’s overseas account (or to an NRE account for onward remittance).
5. For amounts exceeding the annual limit or for special cases, prior RBI approval may be required.

Worked Example: NRI Repatriation of Inherited Property Sale Proceeds

Dual or Differing Wills, Cross-Border Recognition

NRIs with assets in India and abroad often execute separate wills for each jurisdiction, an “Indian will” covering Indian assets and a foreign will covering overseas assets. This practice avoids the need for cross-border probate and ensures each will is drafted in compliance with local formal requirements. The key consideration is that neither will should inadvertently revoke the other; each should expressly state that it applies only to assets in the specified jurisdiction.

FEMA Practical: NRO to NRE Repatriation Limits and Procedure

FEMA compliance for heirs involves understanding the distinction between NRO and NRE accounts. Funds in an NRO account are freely repatriable up to the USD 1 million annual ceiling (subject to tax compliance), whereas NRE account balances are fully and freely repatriable without limit. The strategic step is therefore to transfer eligible amounts from NRO to NRE (after tax clearance and CA certification), from where the heir can remit overseas without further restriction.

When to Go to Court, Letters of Administration, Vesting Orders and Contested Estates

The repeal of Section 213 does not eliminate probate, it eliminates the statutory mandate for probate. Courts remain available, and in several scenarios the court route is not just advisable but practically unavoidable.

• Contested wills: If any party challenges the validity, interpretation or authenticity of the will, a court determination is the only reliable path to resolution.
• Intestate estates: Where the deceased left no valid will, heirs must apply for letters of administration or a succession certificate to establish entitlement.
• Registry refusal: If a sub-registrar office or bank refuses to accept executor documents, a court-issued probate or vesting order resolves the impasse.
• Missing or disputed assets: Where assets are concealed, misappropriated or disputed by third parties, the court’s investigatory and injunctive powers are essential.

Procedural Checklist and Typical Timelines

1. File a petition for probate (if there is a will) or for letters of administration (if intestate) in the district court or High Court having jurisdiction.
2. Serve citation on all persons who may have an interest in the estate.
3. Attend hearing(s), contested matters may require multiple dates; uncontested probate can conclude in a few months.
4. Obtain the court’s grant, probate, letters of administration or succession certificate.
5. Use the grant as conclusive evidence of title with banks, registries, depositories and other third parties.

Timelines vary significantly by state and court workload. Uncontested probate in metropolitan High Courts typically takes three to nine months. Contested proceedings can extend to several years.

Practical Next Steps Checklist

Whether you are an executor, an heir or an NRI beneficiary, the following checklist consolidates the action items from this guide:

1. Confirm whether the deceased left a valid will and whether you are named as executor or beneficiary.
2. Assemble the non-probate evidence bundle: original will, death certificate, executor affidavit, indemnity bond, identity documents and no-objection declarations.
3. Run through the seven-question decision checklist to determine whether probate or letters of administration are advisable for your estate.
4. Contact each bank, sub-registrar office and depository participant to confirm their current documentary requirements post-Section 213 repeal.
5. For any sale of inherited immovable property, ensure the buyer deducts 1% TDS under Section 194-IA (for consideration of Rs 50 lakh or more) and files Form 26QB.
6. Compute capital gains using the deceased’s original cost of acquisition (indexed) and file the return of income by the due date.
7. If you are an NRI, instruct a CA to issue the repatriation certificate and file Forms 15CA/15CB before instructing your AD bank to remit from NRO.
8. If any third party refuses to accept non-probate documents, consider applying to court for probate, letters of administration or a vesting order.
9. Consult a specialist through the Global Law Experts lawyer directory for estates involving cross-border elements, contested wills or high-value assets.

Conclusion, Navigating the Post-Section 213 Landscape

The omission of Section 213 by the Repealing & Amending Act, 2025 represents the most significant procedural shift in Indian succession practice in decades. For wills & estates lawyers India practitioners, the change creates both opportunity and risk: opportunity, because many estates can now be administered faster and at lower cost; risk, because the absence of a uniform replacement standard means executors face inconsistent demands from banks, registries and depositories across states. The safest course for high-value, multi-asset or cross-border estates remains obtaining probate or letters of administration, treating the court grant as premium insurance against third-party refusals and future disputes.

For simpler estates, the non-probate evidence bundle, executor affidavit, original will, death certificate, indemnity bond, will increasingly suffice, provided the executor is methodical in documentation and proactive in confirming each institution’s requirements. Tax and FEMA obligations remain unchanged and non-negotiable: buyers must deduct TDS under Section 194-IA, heirs must compute and pay capital gains, and NRIs must comply with RBI repatriation procedures. Specialist legal advice tailored to the specific estate composition and jurisdictional requirements is essential.

Sources

1. Press Information Bureau, Factsheet: The Repealing & Amending Act, 2025
2. The Repealing & Amending Act, 2025 (Gazette of India)
3. Indian Succession Act, 1925 (India Code)
4. Reserve Bank of India, FEMA Notifications (Repatriation)
5. RBI, FEMA (Realisation, Repatriation and Surrender of Foreign Exchange)