India Law and Practice

A Bare Summary, as at 1 January 2026

This document is provided for general guidance only and does not constitute legal, tax or fiduciary advice. Estate planning is bespoke to each individual, and professional advice tailored to your specific circumstances and relevant jurisdictions should always be obtained. Laws and regulations may change from time to time, and reliance should not be placed on this document without appropriate professional confirmation.

1. In Case of Mental and/or Physical Incapacity

A Lasting Power of Attorney, commonly recognised in jurisdictions such as the United Kingdom and the United States as a contingency mechanism that enables family members or designated attorneys to manage the assets of an individual who becomes physically and/or mentally incapacitated, is not recognised under Indian law.

In India, a power of attorney is treated as a contractual arrangement and remains valid only as long as the donor is alive and has the mental capacity to contract. Consequently, if the donor loses mental capacity, the power of attorney is automatically revoked. While a power of attorney may be effective during periods of physical incapacity, it provides no authority in the event of mental incapacity.

In 2018, the Hon’ble Supreme Court of India recognised the fundamental right to die with dignity and provided legal recognition to the concept of an Advance Directive (AD), also known as a Living Will. An AD allows an individual to express their wishes concerning medical treatment in the event of future incapacity, generally addressing life-support and end-of-life decisions.

The “executor” named in an AD does not have the authority to make independent decisions and their role is limited to ensuring that the instructions and wishes of the individual as set out in the AD are followed. Notably, an AD cannot address estate, financial, or property-related matters. ADs must be registered with local authorities.

Although ADs are legally recognised, there are no publicly reported instances of ADs being effectively executed in India. Implementation remains challenging because the Supreme Court’s framework requires multiple medical board reviews prior to executing the AD. Further, many state authorities have not yet
established the administrative mechanisms for registering or recording ADs. Only a few major hospitals have set up partial internal protocols, and practical resistance or procedural delays are common.

2. Death/Estate Taxes

India currently does not impose estate duty, inheritance tax, or death taxes. The former Estate Duty Act, 1953, which imposed tax on property passing upon death, was abolished in 1985 due to administrative inefficiencies, low levels of wealth reporting, and the existence of a separate wealth tax (which itself was
abolished with effect from April 2015).

In the past decade, however, there has been recurring speculation about the possible reintroduction of an estate duty regime. This discussion has been influenced by the 2017 OECD-aligned Economic Survey referencing the potential benefits of estate taxation, increased digitisation and ease in tax reporting and collection, strengthened tax information and reporting frameworks.

While there is no current indication that legislation will be introduced in the near term, any future estate duty regime is expected to draw concepts from both the earlier Indian framework and mature common-law estate tax systems, such as those in the United Kingdom. This is likely to include, spousal exemptions,
taxation of lifetime gifts, and look-through treatment of trust structures.

Given this uncertainty, trust structures are commonly implemented in anticipation of any potential reintroduction of estate duty, particularly by families with cross-border beneficiaries who are already exposed to death/estate tax regimes overseas. Establishing such structures earlier may allow them to be
grandfathered if new legislation is introduced.

3. The Probate Procedure

In India, a probate is no longer legally mandatory in any part of the country. Notwithstanding the absence of a statutory mandate, it has become increasingly common for local authorities, including sub-registrars responsible for property mutation, municipal authorities, and financial institutions such as banks,
depositories, and companies, to insist on probate before updating ownership records or recognising the transmission of assets on death. In practice, these counterparties often treat probate as evidence of the Will’s validity and a risk-mitigating safeguard against later disputes.

A probate proceeding does not itself confer title to property or transmit legal ownership. What it does is certify the validity of the Will and confirm the executor’s authority to administer the estate. Even in the absence of a mandatory statutory requirement, obtaining a probate can reduce the risk of future challenges to validity of a Will and can provide greater certainty for third parties dealing with the estate (such as for mutation, transfers, financial accounts, or overseas “resealing”).

To apply for probate, the executors must file a detailed inventory of all assets and liabilities of the deceased, including valuation, supporting documents and affidavits verifying the Will from the witnesses. The legal heirs under applicable intestate succession laws must be served notice of the probate petition and may contest the Will during the pendency of the proceeding. While a typical probate may extend between 6 (six) months to 1 (one) year, contested matters can significantly extend timelines.

4. Landed Property Law

Under Indian law, immovable property (whether land, a house, or an apartment) may be held under absolute ownership or under a lease. Absolute ownership confers full proprietary rights, subject to restrictions imposed by statute. Leases may be granted for a fixed number of years, with or without a
premium, and subject to payment of rent and other contractual conditions. Subject to the terms of the lease and applicable law, leasehold rights may be transferred. Shorter leases, particularly for residential premises, may be regulated by applicable State rent control legislation. Immovable property is also specifically regulated under the Indian foreign exchange regime.

Agricultural land occupies a distinct position under Indian law. Its ownership and transfer are regulated primarily by state-specific land laws, many of which restrict transfer to persons who are not agriculturists or impose ceilings and conditions on holding. In addition, under the Indian foreign exchange controls and the regulations made thereunder, non-resident Indians and foreign nationals are generally prohibited from acquiring agricultural land, plantation property or farmhouses in India, except by way of inheritance in accordance with applicable law.

Immovable property may be owned by two or more persons. Typically, co-ownership of property is presumed to be ‘tenancy-in-common’, unless a contrary intention is clearly expressed within the relevant documentation, or otherwise my way of action. The co-owners of a property are treated as holding separate
and divisible shares in the property. Each co-owner’s share is a proprietary interest capable of transfer during lifetime and forms part of that person’s estate.

Indian law does not generally recognise automatic survivorship, or ‘joint tenancy’ between co-owners. On the death of a co-owner, their share does not vest automatically in the surviving co-owner, but devolves by testamentary succession (where there is a valid Will) or by intestate succession under the applicable
personal law.

1 January 2026