Ancillary Probate for Foreign Wills in India: Legal Process and Key Considerations

What is Ancillary Probate?

Ancillary probate constitutes a judicial mechanism enabling beneficiaries and executors to administer and devolve assets of a deceased individual situated in India, particularly where the estate extends across multiple jurisdictions or states.
In practical terms, where a testator expires leaving Indian assets such as real estate, banking interests, or vehicles and the will has been probated in a foreign court, beneficiaries are obliged to procure ancillary probate from an Indian court to effect lawful access and transmission thereof.

According to Indian Succession Act, 1925 no executor of a will may establish his/her right before a court without producing a probate along with a copy of the concerned will. Previously, probate was mandatory for wills impacting properties in Mumbai, Chennai, and Kolkata. However, the Repealing and Amending Act, 2025 dispensed with this compulsion in those presidencies, rendering probate discretionary yet advisable. Crucially, this dispensation does not extend to foreign wills, obtaining a probate for execution still applies to foreign will.
 

Statutory Framework for Foreign Wills

Wills executed in foreign jurisdictions are not automatically enforceable in India. An Ancillary Probate must be obtained from the specific High Court for executing a foreign will within India. Though not defined in the Act itself, an Ancillary Probate may be obtained under Section 228 r/w 213, which provide that, when a will has been proven/deposited in a foreign court of competent jurisdiction, a properly authenticated copy of the will must be produced for obtaining an ancillary probate.

Without an ancillary probate, the foreign Will will be operable only within its relevant country and will have no legal authority in India. Another relevant provision is Section 270, which states that probate may be granted by a District Judge, is it appears that the deceased had a fixed place of abode within the jurisdiction of such court at the time of death. This is not a suo motto power of the District Courts and may be exercised only upon filing of a petition.

Sectio 273 seals the authority of a probate, and states that it “shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate” has been granted. Such probate shall have effect throughout India, regardless of the court which grants it.

When is Ancillary Probate Required?

Ancillary probate becomes necessary in the following situations:

• The deceased was a Non-Resident Indian (NRI) or foreign national who held property in India
• The deceased had the primary Will proved in a foreign court (in their country of residence)
• The deceased owned immovable property (land, buildings, apartments) in India
• The deceased owned movable property in India.
• No will was probated in India during the deceased's lifetime

 

Application for Ancillary Probate

Limitation: An application for ancillary probate must be filed in the relevant court within 3 years from either the death of the testator or from the date of the final order of the foreign court which confirmed the validity of the will.

Particulars: The following may be stated in the Application under Section 276 (not mandatory for ancillary probate):

1. the time of the testator's death,
2. that the writing annexed is his last will and testament,
3. that it was duly executed,
4. the amount of assets which are likely to come to the petitioner's hands, and
5. When the application is for probate, that the petitioner is the executor named in the will.

Documents required: (along with the Application for ancillary probate)

1. Properly authenticated copy of will,
2. Death Certificate,
3. Affidavit by executor,
4. Notice to all other legal heirs (mentioned in the will).

[The above list is exhaustive. Other documents may be required, depending upon the subject matter of the will.]
 
Following property Can Be Transferred Using Ancillary Probate:

• Immovable Property
• Movable Property
• Financial Assets
• Business Assets
• Intellectual Property

Additional documentation is required specific to the asset type and the institution holding the asset (banks, government offices, courts, etc.).

Issues and Complications

If the foreign court order lacks the necessary observations about the testator's signature, mental capacity, or witness verification, the Indian court may reject or delay the application. This is why the primary probate must strictly comply with Indian legal requirements.

If any beneficiary or heir challenges the validity of the Will or the foreign probate, court proceedings may be necessary in India. The ancillary probate process would be stopped or delayed until the dispute is resolved.

Variations in the deceased's name across documents can delay the process. This must be clarified through affidavits or other documentary evidence.
 

Conclusion

The process of ancillary probate requires precision, attention to detail, and coordination with foreign authorities. Our firm has experience guiding families through this complex procedure and can assist at every stage.

At India Law Offices, we know how tough it can be to handle probate, especially when it involves assets across countries. Our team of estate lawyers is here to help you every step of the way with the probate of will process, including ancillary probate

Our team can assist you with end-to-end process. With years of experience helping NRIs and families, we ensure everything follows Indian laws properly.