Many of my estate planning clients are relatively recent immigrants to the U.S., and continue to own property in their countries of origin. In particular, I am frequently asked questions about how an Oregon legal will or trust may affect property in India. Here are some general observations regarding this rather complicated subject:
- Clients residing in Oregon with assets in India should ideally consult with an estate planning attorney in India to ensure that those assets are distributed correctly at death.
- India is a common law jurisdiction, meaning that there are numerous similarities between U.S. and Indian estate laws. In particular, the probate process in India for a testate estate is very similar to Oregon probate. On the other hand, for an intestate estate, India law may be very different, as the distribution of assets may depend on the decedent’s religion (Hindu, Muslim, Christian, etc.).
- India does allow a revocable living trust (“RLT”), which could be used for probate avoidance, as in the U.S. However, a living trust created in the U.S. would be considered an “offshore trust,” meaning that complicated rules will apply for transferring assets into the RLT. For example, India may prohibit the transfer of immovable property, i.e., land, into such a trust, as the trust is not a resident of India.
- The transfer of financial assets from India into an offshore trust may require the approval of the Financial Bank of India under the Foreign Exchange and Management Act (“FEMA”).
- An Oregon legal will could be probated in Oregon, and then registered in an appropriate court in India to ensure the proper distribution of assets in India.