Succession Certificate vs. Probate for NRIs
Every week, we speak with NRIs in the UK, the US, Canada, and the Gulf who are in the same difficult position: a parent or spouse has passed away in India, leaving behind shares, fixed deposits, mutual fund units, or a bank balance — and nobody told them what document they actually need to transfer those assets into their name. The words Succession Certificate and Probate get used interchangeably, sometimes by banks, sometimes by depository participants, and that confusion alone can delay a family's claim by months or even years.
I want to set the record straight for you today. As practicing lawyers who handle NRI legal services every day, we have seen how getting the wrong document — or going to the wrong court — can cost a family enormous time and money. So let me walk you through exactly what each of these documents is, when you need which one, and how we recommend going about it.
What Is a Succession Certificate — and What Is Probate?
Think of a Succession Certificate as a court-issued permission slip that says: "Yes, this person is the rightful legal heir, and they are authorised to collect the debts and securities that belonged to the deceased." It is granted under the Indian Succession Act, 1925 and is the primary document most financial institutions in India ask for when there is no Will — or when the Will has not been formally verified by a court.
A Probate, on the other hand, is the court's formal certification that a Will is genuine and valid. When a person dies leaving a registered Will, the executor named in that Will applies for Probate so they have the legal authority to carry out its instructions.
This applies to you if any of the following are true:
Who Does This Apply to - Is This Your Situation
You live outside India and a family member — typically a parent — has passed away, leaving financial assets in India in their sole name.
A depository participant (like CDSL or NSDL), a mutual fund house, or a bank has told you that a Succession Certificate or Probate is required before they can transfer the holdings.
The deceased did not add a nominee to their accounts, or the nominee has also passed away.
There is a Will, but the bank or registrar is still asking for a court document to honour it.
Even if there is a nominee registered on a demat account or a mutual fund folio, that nomination only helps with a straightforward transfer. For larger estates, older accounts, or any situation involving multiple heirs, financial institutions almost always want a formal court order for their own legal protection — and rightly so.
What Are Your Legal Rights as an NRI Heir?
Your rights as an heir do not shrink because you live abroad. Under the Indian Succession Act, 1925, and for Hindus, Sikhs, Jains, and Buddhists under the Hindu Succession Act, 1956, you have an equal right to your share of the estate regardless of whether you hold an Indian passport, an OCI card, or a foreign citizenship.
Here is what the law gives you:
Right to apply for a Succession Certificate from the District Court in the jurisdiction where the deceased last lived, or where the assets are located.
Right to appoint a lawyer to appear on your behalf so you do not need to travel to India for every hearing. This is especially important for NRIs.
Right to receive your share and repatriate the money abroad, subject to FEMA (Foreign Exchange Management Act) guidelines, after obtaining the relevant RBI permissions if needed.
Right to challenge any fraudulent claim or transmission that has been processed without proper legal authority
What We Recommend — A Step-by-Step Plan for NRIs
When a client comes to us in this situation, here is the process we walk them through. I am sharing it with you so you know exactly what to expect:
Gather the foundational documents first. You will need the death certificate (duly attested), the deceased's PAN card, any passbook or account statements, the demat account details, and your own identity documents showing your relationship to the deceased. Start collecting these immediately — delays here push everything else back.
Get the death certificate apostilled or notarised if you are using it abroad. If any documents need to be signed by you from outside India and submitted to an Indian court, they typically need to be notarised locally and then apostilled (for Hague Convention countries) or attested by the Indian Embassy or Consulate.
Identify the correct court. The application for a Succession Certificate is filed in the District Court where the deceased ordinarily resided, or where the assets are located. We identify this for every client before filing a single paper.
File the petition. The petition lists all the heirs, all the assets, and requests the court to issue the certificate. The court then publishes a notice (typically in two newspapers) giving any objectors 45 days to come forward. If no one objects, the certificate is typically issued.
Pay the court fee. Most states charge approximately 2% of the declared value of the assets. This is paid as a stamp duty at the time of issuance. Budget for this ahead of time.
Present the certificate to the financial institution. Once you have the Succession Certificate, the bank, depository participant, or registrar and transfer agent is legally obligated to act on it and transfer the assets to you. Keep certified copies — you will often need more than one.
Handle repatriation carefully. If you want to send the money abroad, speak with a CA or FEMA consultant alongside your lawyer. NRIs can repatriate up to USD 1 million per financial year from inherited assets, but the paperwork — including Form 15CA/CB — must be in order.
Mistakes That Can Seriously Hurt Your Case
We have seen well-meaning families lose months of progress — and sometimes face legal complications — because of avoidable errors. Please take these warnings seriously:
Applying in the wrong court. Filing in a court that does not have territorial jurisdiction means your petition can be rejected outright. Always verify jurisdiction before filing.
Understating the asset value to save on court fees. This is a common mistake that can lead to the certificate being challenged later, or the financial institution refusing to honour it for the full value of the assets.
Not listing all legal heirs in the petition. If you leave out even one legal heir — a sibling, for instance — the certificate can be contested and set aside. Every heir must be named, even if they are not claiming a share.
Relying on a nominee to handle everything. A nominee is a trustee, not an owner. They are required by law to distribute the assets to the legal heirs. Treating a nomination as a substitute for legal succession can create serious family disputes.
Trying to manage the process entirely from abroad without a local lawyer. Indian courts require physical appearances at certain stages. A proper power of attorney given to your lawyer avoids the need for you to travel for routine hearings, but you do need a qualified local advocate.
Waiting too long. There is no strict limitation period for a Succession Certificate application, but old accounts can be transferred to the Investor Education and Protection Fund (IEPF) if left unclaimed for seven years. Act while the assets are still accessible.
Frequently Asked Questions from Our NRI Clients
Can I apply for a Succession Certificate without travelling to India?
Yes, in most cases. You can give your Indian lawyer a power of attorney — signed and notarised abroad, then apostilled or consulate-attested — allowing them to appear on your behalf in court. You may still need to be present for the final hearing in some jurisdictions, but we advise clients on this specifically for their state.
My father had a Will. Do I still need Probate to claim his shares?
If the assets are located in Maharashtra, West Bengal, or Tamil Nadu, Probate is compulsory for a Will made in those states. Elsewhere in India it is optional, but many banks and depository participants will still ask for it. In those cases, a Succession Certificate can sometimes be obtained alongside the Will as an alternative — we assess this case by case.
How long does the Succession Certificate process typically take?
Realistically, between six and eighteen months for an uncontested case, depending on the court's workload and how quickly you can provide documents. Contested matters — where another heir or creditor objects — can take significantly longer. Starting the process promptly and having all documents ready from day one makes the biggest difference to timelines.
Can I transfer the inherited shares to my NRO demat account?
Yes. An NRI can hold inherited shares in an NRO (Non-Resident Ordinary) demat account. Once transferred, you can sell them through a registered broker. The sale proceeds go into your NRO bank account, from where you can repatriate up to USD 1 million per financial year after paying applicable taxes and completing the required FEMA documentation.
What if the shares are in a physical certificate form, not in a demat account?
Physical share certificates still exist, particularly for older companies. The process involves transmitting the shares to your name with the company's Registrar and Transfer Agent using the Succession Certificate, and then dematerialising them. It takes longer and requires additional steps, but it is entirely possible and we handle these cases regularly.
Is there any way to avoid getting a Succession Certificate altogether?
For small amounts, some banks and mutual fund houses have internal indemnity-based procedures for claims below a certain threshold (often Rs. 5 lakh) without requiring a court certificate. However, for shares, demat accounts, and larger balances, a Succession Certificate is almost always unavoidable. The good news is that once obtained, one certificate typically covers multiple assets — you do not need a separate one for each holding.
You Have More Support Than You Think
If you are reading this from London or New Jersey or Dubai, trying to understand how to claim your family's assets in India, I want you to know something: this process, while it can feel overwhelming from a distance, is navigable. Courts issue Succession Certificates every single day. Financial institutions transfer inherited shares every single day. The law is on your side — you simply need someone who knows how to work within it.
At Aagarwalla & Co., our NRI legal services practice exists for exactly this purpose. We handle the court filings, the newspaper publications, the follow-ups with depository participants, and the co-ordination with your bank — so that you can focus on your family during what is already a difficult time. We work with NRI clients entirely through video calls and email, with powers of attorney handling the court appearances on the ground in India.
A Succession Certificate is not the end of a difficult road — it is the key that opens the door. And we are here to help you find it.
