Wills & Estates Lawyers India 2026: Probate Optional After Section 213 Repeal, Executors, TDS & FEMA Compliance

Probate is no longer mandatory in India. The Repealing and Amending Act, 2025 omitted Section 213 of the Indian Succession Act, 1925, removing the statutory compulsion that previously required executors to obtain probate before they could establish a right to property under a will. For wills & estates lawyers in India, this single legislative change has triggered a cascade of operational questions, from how banks will release funds without a court order to the precise FEMA repatriation steps NRI heirs must follow to compliantly move inherited wealth offshore.

This guide delivers the practical, step-by-step compliance framework that executors, NRIs, private client solicitors, conveyancers and banking compliance teams need right now, covering the legal effect of the Section 213 repeal, when voluntary probate still makes sense, TDS on inherited property, and a complete executor checklist for 2026.

1. What Changed: The Repealing and Amending Act, 2025, Legal Effect and Timeline

The Repealing and Amending Act, 2025 (Act No. 37 of 2025) received Presidential assent on 20 December 2025 and was published in the Gazette of India on 21 December 2025. The Press Information Bureau issued an official factsheet on 1 January 2026 summarising the Act’s scope.

Among several provisions of older statutes identified for repeal or amendment, the Act’s Schedule omitted Section 213 of the Indian Succession Act, 1925, the section that had, for nearly a century, barred any person from establishing a right as executor of a deceased person or obtaining property that the deceased had bequeathed unless a court of competent jurisdiction in India had first granted probate of the will or letters of administration with the will annexed.

The practical effect is clear: the statutory compulsion to obtain probate before acting on a will has been removed. Executors named in a will can now, in principle, approach banks, registrars and other custodians directly with the will and supporting documentation, without first going through the time-consuming and sometimes costly probate process. Industry observers expect this change to materially reduce estate administration timelines across India, particularly for straightforward, uncontested successions.

Section 213 Before Repeal, What It Required

Prior to the omission, Section 213 of the Indian Succession Act, 1925 stated 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 letters of administration with the will annexed, under which the right was claimed. This provision applied with particular force in the presidency towns (Mumbai, Kolkata and Chennai) and extended, through judicial interpretation, to many banking and property registration contexts nationwide. It meant that even a clearly valid, uncontested will could not be acted upon, by a bank, a sub-registrar or a third-party buyer, without a court order.

Key Dates and Transitional Effects

Event	Date	Reference
Presidential assent to Repealing and Amending Act, 2025	20 December 2025	Gazette of India, eGazette PDF
Gazette publication	21 December 2025	eGazette (268699.pdf)
PIB Factsheet published	1 January 2026	PIB Factsheet ID 150601
Section 213 of the Indian Succession Act, 1925 ceases to have effect	From the date of commencement of the 2025 Act	Schedule to the Repealing and Amending Act, 2025

The Act includes a standard savings clause, meaning the repeal does not affect any proceedings already concluded under the old provision, nor does it invalidate probates already granted. Estates where probate was obtained before the commencement date remain fully valid. The change is prospective: it removes the requirement for future estates without disturbing past grants.

2. When Probate Is Still Useful or Advisable, How Wills & Estates Lawyers in India Should Advise Executors

Although probate is now optional rather than compulsory, there are several situations where experienced practitioners will continue to recommend a voluntary probate application. The repeal of Section 213 removes a legal barrier; it does not remove practical risk. Executors should assess each estate against the following decision criteria before choosing their path.

Decision Checklist, When to Apply Voluntarily

• Contested or potentially contested wills. Where beneficiaries disagree, a court-granted probate provides definitive judicial confirmation of the will’s validity and the executor’s authority.
• High-value institutional holdings. Some banks, insurance companies and mutual fund registrars may continue to insist on probate as an internal risk-management policy, especially for large balances.
• Cross-border title transfers. Foreign registries (particularly in the UK, Australia and the UAE) may require a formal grant of representation before recognising Indian succession.
• Immovable property in former presidency towns. While the statutory compulsion is gone, sub-registrars in Mumbai, Kolkata and Chennai may take time to update internal processes; voluntary probate can avoid registration delays.
• Multiple properties across states. A single probate order can simplify coordinating with several state-level registrar offices.
• Protection against future claims. Probate provides a court-examined record of the will’s due execution, guarding executors against later challenges by omitted family members.

Probate vs Letters of Administration, Comparison Table

Option	When Advisable	Key Practical Obligations
Probate (voluntary)	Contested wills; foreign title transfer requirements; institutional custody requiring court order; high-risk bank rejection scenarios	File petition in High Court or Principal Civil Court of competent jurisdiction; obtain probate order; register with banks, custodians and sub-registrars; court fees and hearing timelines apply
Letters of Administration	Intestate succession (no will exists) or where the executor named in the will is unavailable, unwilling or deceased	Apply to competent civil court for letters of administration; prepare full inventory of assets, affidavits of heirship, and indemnity bonds as directed by the court
No formal court process (post-repeal)	Uncontested will; cooperative beneficiaries; low-risk third parties; banks and registrars willing to accept affidavits and indemnities	Assemble complete evidence pack: original will, death certificate, identity proof of executor and beneficiaries, notarised affidavits, indemnity bonds, NOCs from all beneficiaries; conduct risk-profile assessment for each custodian

3. Executor Duties and Bank/Registry Interactions Post-Repeal

The Section 213 repeal has shifted the burden from courts to executors. Without a compulsory probate, the executor must now assemble a comprehensive documentation package that gives banks, insurers and registrars sufficient comfort to release assets. The following guidance covers the typical operational steps and includes a sample bank instruction approach.

Banks and Custodians, Typical Document Requirements

Although requirements vary by institution, early indications suggest that most banks and custodians in India will accept a well-prepared evidence pack in lieu of probate. The standard document list that executors should prepare includes:

• Original or certified copy of the will. Preferably notarised; if the original is held by a lawyer or safe-deposit, obtain a certified extract.
• Death certificate. Issued by the local municipal authority.
• Identity proof of the executor. Aadhaar, PAN card and passport (if NRI).
• Identity proof of all beneficiaries. Same documentation for each named beneficiary.
• Indemnity bond. Executed by the executor (and, where the bank requires, by beneficiaries) indemnifying the bank against claims from third parties.
• Affidavit of due execution. Sworn statement confirming that the will was duly signed and witnessed, that no later will exists, and that no probate or letters of administration proceedings are pending.
• No-objection certificates (NOCs). Signed by each beneficiary named in the will confirming consent to the executor’s actions.
• Succession certificate (where applicable). For certain debts and securities, a succession certificate under Part X of the Indian Succession Act, 1925 may still be required, the repeal of Section 213 did not affect sections 370–390.

Sample Bank Instruction Letter, Template Structure

Executors approaching banks without a probate order should present a structured cover letter containing the following elements:

1. Formal identification of the executor (name, address, PAN, Aadhaar) and reference to the will clause appointing them.
2. Citation of the Repealing and Amending Act, 2025 and confirmation that Section 213 of the Indian Succession Act no longer requires probate.
3. List of enclosed documents (will, death certificate, identity proofs, indemnity bond, affidavit, NOCs).
4. Specific request: release of funds / transfer of account / closure and remittance, with account numbers and branch details.
5. Indemnity clause: the executor undertakes to indemnify the bank against all claims, costs and losses arising from acting on the will without probate.
6. Contact details of the executor’s legal counsel for any queries or additional documentation requirements.

Handling Contested Claims

If the bank receives a conflicting claim from another party (for example, a family member asserting a later will or challenging the executor’s appointment), the likely practical effect will be that the bank freezes the account and directs the claimants to court. In such cases, voluntary probate becomes not just advisable but essential. Executors who anticipate any dispute should consider filing for probate proactively rather than facing delays once a bank has frozen funds.

4. NRI Inheritance: FEMA, Repatriation and Bank Compliance

For Non-Resident Indians inheriting assets in India, the Section 213 repeal simplifies one step, obtaining authority to act, but does not change the substantial FEMA and RBI compliance framework that governs the repatriation of inherited funds. NRI inheritance under FEMA remains tightly regulated, and errors in documentation or procedure can result in significant delays or even regulatory penalties.

Under the Foreign Exchange Management Act, 1999 and the RBI’s Master Directions, NRIs who inherit assets from a person resident in India may hold or transfer those assets in accordance with FEMA regulations. Immovable property (other than agricultural land, plantation property or farmhouse) can be held and subsequently sold. Sale proceeds and other inherited balances can be credited to the NRI’s Non-Resident Ordinary (NRO) account and then repatriated, subject to conditions.

Repatriation Steps and Checklist

The RBI permits remittance of up to USD 1 million per financial year from an NRO account, inclusive of sale proceeds of inherited assets, subject to the following requirements:

1. Credit sale proceeds to NRO account. Ensure the buyer’s payment is deposited directly into the NRI heir’s NRO account with an Authorised Dealer (AD) bank.
2. Obtain a Chartered Accountant (CA) certificate. The CA must certify that all applicable taxes (income tax, TDS and capital gains) have been paid or provided for, and that the funds are eligible for remittance under FEMA.
3. Submit Form 15CA and 15CB. Form 15CB is the CA’s certification; Form 15CA is the remitter’s declaration, both must be filed electronically before the AD bank processes the remittance.
4. Provide title chain documentation. The AD bank will require proof of inheritance (will, death certificate, executor documentation or succession certificate), proof of sale (registered sale deed, TDS certificates), and identity documents (passport, PAN, OCI/PIO card).
5. Transfer from NRO to NRE (if applicable). Once the AD bank is satisfied with documentation, funds may be transferred from the NRO account to an NRE account (fully repatriable) or remitted directly abroad.

Documents AD Banks Require, Comprehensive List

• Inheritance proof: Will (original or certified copy), death certificate, probate order (if obtained voluntarily), or succession certificate.
• Sale documentation: Registered sale deed, TDS certificates (Form 16A), proof of capital gains tax payment.
• CA certificate: In the format prescribed by the RBI, confirming tax compliance and eligibility for remittance under FEMA.
• Identity and residency proof: Valid passport, OCI/PIO card, overseas address proof, PAN card.
• Form 15CA and 15CB: Filed and acknowledged copies.
• Undertaking: That the remittance is within the USD 1 million per financial year limit and that the NRI is not remitting agricultural land proceeds (which are not permitted).

5. Tax Consequences and TDS on Inherited Property, Practical Mechanics

India does not impose an inheritance tax. The receipt of property under a will is not a taxable event for the beneficiary under the Income-tax Act, 1961. However, the tax event arises when the inherited property is sold. Understanding how wills & estates lawyers in India advise on TDS on inherited property is critical, particularly for NRI heirs where the withholding regime is significantly more burdensome.

Cost Basis and Holding Period

Under the Income-tax Act, 1961,( now superseded by the Income Tax Act, 2025) the cost of acquisition for the heir is deemed to be the cost at which the deceased (previous owner) originally acquired the property. Crucially, the holding period also includes the period for which the deceased held the property. This means that if the deceased purchased the property fifteen years ago and the heir sells it one year after inheriting, the total holding period is sixteen years, qualifying the gain as long-term capital gain (LTCG).

For immovable property, LTCG is computed after applying the cost inflation index to the original acquisition cost (for properties acquired before a specified cut-off date, the fair market value as on that date may be used as the deemed cost). The applicable tax rate depends on the date of sale and the provisions of Section 112 of the Income-tax Act as amended.

TDS Obligations, Resident vs Non-Resident Seller

The withholding obligations differ sharply depending on the seller’s residential status:

• Resident seller (Section 194-IA): of the 1961 Act The buyer must deduct TDS at the rate of 1% of the total sale consideration (for properties valued above ₹50 lakh). The buyer deposits TDS using Form 26QB within 30 days of the month in which the deduction is made.
• Non-resident seller (Section 195): of the 1961 Act The buyer must deduct TDS on the entire sale consideration at the applicable capital gains rate (currently 12.5% for LTCG on immovable property, or the rate as specified by the Finance Act in force). This is significantly higher than the 1% applicable to resident sellers. The buyer files Form 27Q quarterly.

Worked Example, NRI Heir Selling Inherited Property

Item	Amount / Detail
Property sale consideration	₹2,00,00,000 (₹2 crore)
Deceased’s original cost of acquisition (2005)	₹30,00,000
Indexed cost of acquisition (using CII)	₹78,00,000 (illustrative)
Long-term capital gain	₹1,22,00,000
LTCG tax at 12.5%	₹15,25,000
TDS deducted by buyer under Section 195 at 12.5% of sale consideration	₹25,00,000
Excess TDS (refund claimable by NRI)	₹9,75,000

As the worked example demonstrates, the buyer withholds TDS on the full sale price under Section 195, not on the capital gain alone. This routinely results in over-deduction, which the NRI heir must recover by filing an income-tax return in India claiming a refund.

Lower Deduction Certificate (Form 13), Reducing TDS Burden

NRI sellers can apply to the Assessing Officer for a lower or nil deduction certificate under Section 197 of the Income-tax Act (using Form 13). If granted, the buyer deducts TDS at the reduced rate certified by the tax authority, aligning the withholding more closely with the actual tax liability. This step is strongly recommended for all NRI heirs selling inherited property, as it preserves liquidity and avoids the delay of waiting for a refund assessment.

Forms and Reporting Summary

• Form 26QB: Buyer’s TDS statement for resident seller (Section 194-IA).
• Form 27Q: Buyer’s quarterly TDS return for non-resident seller (Section 195).
• Form 16A: TDS certificate issued by the buyer to the seller, essential for the NRI’s income-tax return filing.
• Form 13: Application by the NRI seller for a lower deduction certificate.
• Form 15CA / 15CB: Required for remittance of sale proceeds outside India, CA certification and remitter declaration.

6. Practical Executor Checklist, Step-by-Step for 2026

The following operational checklist covers the first six months of estate administration after the death of the testator. Executors should treat this as a sequenced action plan, adapting timelines to the complexity of the estate.

Immediate Steps (Week 1–2)

1. Obtain the death certificate from the local municipal authority.
2. Locate the original will and any codicils; confirm no later will exists.
3. Notify all beneficiaries named in the will.
4. Secure all assets: notify banks to place a hold, inform insurers, secure physical property.
5. Engage wills & estates lawyers in India to assess whether voluntary probate is advisable.

Short-Term Actions (Week 2–6)

1. Prepare the complete evidence pack (will, death certificate, identity documents, indemnity bonds, NOCs, affidavits).
2. Write to each bank, insurer, mutual fund registrar and pension fund with the structured instruction letter and enclosed documents.
3. If voluntary probate is warranted, file the petition promptly, court timelines can extend three to twelve months.
4. Open an executor bank account if required for collecting and distributing estate funds.

Medium-Term Actions (Month 2–6)

1. Apply for property mutation at the relevant sub-registrar or municipal office; submit will, death certificate and supporting documents.
2. If NRI beneficiaries are involved, coordinate NRO account setup, CA certificate procurement and Form 15CA/15CB preparation.
3. If property is to be sold, engage a conveyancer, obtain valuation reports and ensure TDS compliance (Section 194-IA or Section 195 as applicable).
4. File the deceased’s final income-tax return (for the period up to the date of death).
5. File the executor’s/estate’s income-tax return if income accrues to the estate during the administration period.
6. Distribute assets to beneficiaries in accordance with the will and obtain signed receipts/acknowledgements.

Sample Document Pack, Summary

• Original will (or certified copy) and any codicils
• Death certificate (original plus three certified copies)
• Executor’s identity proof (Aadhaar, PAN, passport)
• All beneficiaries’ identity proof
• Notarised indemnity bond
• Sworn affidavit of due execution
• NOCs from all beneficiaries
• Succession certificate (if required for debts/securities)
• Bank-specific claim forms (obtain from each institution)
• CA certificate and Forms 15CA/15CB (for NRI remittance)

7. Dual Wills, Cross-Border Planning and Conflict Avoidance

For NRIs and families with assets in multiple jurisdictions, the post-repeal environment creates both opportunity and risk. Dual wills, one governing Indian assets and another governing assets in the country of residence, remain a recommended planning tool, but they require careful drafting to avoid inadvertent conflicts.

Dual Wills, Do’s and Don’ts

• Do include a jurisdictional limitation clause in each will, explicitly stating which assets it governs and which jurisdiction’s law applies.
• Do ensure the Indian will is drafted and executed in compliance with the Indian Succession Act, 1925 (Section 63 requirements, signed by testator, attested by two witnesses).
• Do coordinate both wills through a single legal team or through lawyers in each jurisdiction who communicate directly.
• Don’t include a blanket revocation clause in the foreign will (e.g., “I revoke all prior wills”), this may inadvertently revoke the Indian will.
• Don’t assume that a foreign grant of probate will automatically be recognised by Indian banks or registrars, independent Indian legal advice is essential.
• Don’t neglect to update both wills simultaneously when circumstances change (new assets, births, divorces).

Cross-Border Registry Notes

Even after the Section 213 repeal, executors dealing with cross-border estates should note that many foreign jurisdictions (the UK, Australia, Canada) still require a formal grant of representation before releasing assets. The Indian repeal does not affect foreign probate requirements. Family offices managing multi-jurisdictional wealth should map each asset to the applicable succession regime and obtain jurisdiction-specific legal advice on whether a local grant, a resealing of an Indian order, or a standalone foreign application is required.

8. Conclusion, Recommended Next Steps for Executors, NRIs and Banks

The omission of Section 213 represents the most significant change to Indian succession practice in decades. Probate is now optional, but sound estate administration demands the same discipline, documentation and compliance rigour as before, if not more. Executors must assemble robust evidence packs; banks must update their internal policies to accept well-documented wills without court orders; and NRI heirs must navigate FEMA repatriation rules, TDS withholding and cross-border will coordination with precision.

The practical message for all stakeholders engaging wills & estates lawyers in India is straightforward: the legal barrier has been lowered, but the operational complexity remains. Every estate should be assessed individually. Where risk is elevated, contested wills, high-value holdings, cross-border assets, voluntary probate remains the gold standard. Where the estate is straightforward and all parties are cooperative, the post-repeal framework offers a faster, more efficient path to distribution.

Sources

1. The Repealing and Amending Act, 2025, Gazette of India (eGazette)
2. The Repealing and Amending Act, 2025, IndiaCode
3. Press Information Bureau, Factsheet: The Repealing and Amending Act, 2025
4. IndiaCode, The Indian Succession Act, 1925
5. Reserve Bank of India, FEMA Master Directions on Remittance of Assets
6. IndiaCode, Income-tax Act, 1961