What happens to your Australian assets when your family lives in India

In 1973 a proclamation listed the countries whose grants of probate the Supreme Court of Victoria would accept by resealing rather than by a fresh application. Hong Kong was on it. So were Malaysia, Singapore, Kenya, Gibraltar, Guyana, Papua New Guinea and six Canadian provinces. India was not, and it does not appear on the equivalent lists for New South Wales or Queensland.

That omission decides how long it takes a son in Pune to reach his late father’s bank account in Parramatta, and whether a daughter in Chennai inherits a Melbourne townhouse with a capital gains tax bill attached. For Indian Australians with property here and family there, it is where the money and the delay sit.

The 1973 list that still does not include India

Resealing is the shortcut. Instead of proving a will twice, an executor holding a grant from a recognised foreign court presents it to an Australian Supreme Court, which affixes its own seal. The idea descends from the Colonial Probates Act 1892 (UK).

Mitchell Zadow is Managing Principal of Sharrock Pitman Legal in Melbourne, an Accredited Specialist in Commercial Law with the Law Institute of Victoria, and practises in wills, estate planning and probate. His firm’s site sets out the Victorian test under the Administration and Probate Act 1958 (Vic), which permits resealing of grants from “any competent jurisdiction in the United Kingdom or in any of the Australasian States” or from “a country specified in a proclamation in force under Section 88”. The list it reproduces is short and idiosyncratic, and it is why a regular grant from an Indian court carries no weight in Victoria.

New South Wales starts from the same premise. Oliver Morrisey, who holds an LL.M in wills and estates and founded and directs a Sydney probate firm, writes that section 107 of the Probate and Administration Act 1898 (NSW), with Part 78 of the Supreme Court Rules 1970, governs the process, and that the court “affixes its seal to the original grant or to an exemplification of it”. His summary is blunt. “Grants from countries not on the recognised list, including the United States, France, Germany, and most of Asia, cannot be resealed and require a fresh NSW grant.” The NSW formula turns on grants made in the King’s dominions. India became a republic and left that category.

Why an Australian grant is not resealed in India either

The traffic does not flow the other way. Section 228 of the Indian Succession Act 1925 provides that where a will “has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State … and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed”. The Australian grant is evidence. The Indian court still makes its own order.

Hanisha Amesur, of the Mumbai firm Nishith Desai Associates, wrote the India chapter of the International Bar Association’s International Estate Planning Guide, last updated in September 2012. She notes that succession in India is still divided by personal law: the Hindu Succession Act 1956 for Hindus, Islamic law for Muslims, and the Indian Succession Act 1925 for Parsis, Christians and others. On foreign wills she is reassuring.

A foreigner owning assets in India “is not required to create an Indian Will for his Indian assets, but he can have a foreign Will for all his assets”, and any non-resident may inherit Indian property regardless of citizenship. India, she adds, “does not have any inheritance tax or estate duty”, though inherited proceeds may be repatriated only up to “a maximum amount of USD 1 million per financial year”.

Probate is not required everywhere in India: Amesur notes the Act compels it only for wills in Mumbai, Kolkata and Chennai. Where someone dies intestate with only moveable property, the order sought is usually a succession certificate.

The case for two wills

Because neither country rubber-stamps the other’s paperwork, many practitioners recommend two wills. Pavuk Legal advises that if you have assets in Australia and in another country you may wish to execute two wills, one for each. Where a single will covers everything, it warns, “there may be difficulty in obtaining a grant of probate or administration outside of Australia”.

Superannuation death benefit tax, and two definitions of dependant that do not match

For most readers this is the largest single number in the estate, and the least intuitive. Superannuation is generally not an estate asset at all. Legal Aid NSW tells executors that if the deceased left money in a super fund, “you don’t need to apply for a grant of Probate or Letters of Administration”.

Who the fund may pay is set by superannuation law. The Australian Taxation Office lists a death benefit dependant under superannuation law as the deceased’s spouse or de facto spouse, a child of the deceased of any age, or a person in an interdependency relationship with the deceased. Non-dependants may receive only a lump sum; dependants may take a lump sum or an income stream.

How that payment is taxed is set by a narrower definition. Under taxation law, the ATO lists a death benefit dependant as the spouse or de facto, a former spouse or de facto, a child of the deceased under 18 years old, a person financially dependent on the deceased, or a person in an interdependency relationship. An adult son in Hyderabad is a dependant under superannuation law, so the fund may pay him directly. He is almost certainly not one under tax law, because he is over 18 and not financially dependent.

Where the benefit goes to a dependant for tax purposes, the ATO states, “the whole amount is tax-free”. Where it goes to a non-dependant, the trustee must tax the taxable component at 15 per cent for the taxed element and 30 per cent for any untaxed element.

Whether the Medicare levy reaches a beneficiary in India

Schedule 12, the ATO’s withholding table for superannuation lump sums that applies from 1 July 2026, sets withholding for a death benefit paid to a non-dependant at 17 per cent on the taxed element and 32 per cent on the untaxed element. Those figures exceed 15 and 30 because, as the table states, the rates include the Medicare levy, which the ATO applies to super payments wherever the rate of tax exceeds zero.

A beneficiary in India is usually not in that position. The ATO’s guidance for funds paying death benefits states that foreign residents receive the same treatment as residents but are “generally exempt from the Medicare levy”, and Schedule 12 tells the payer that for a foreign resident the rates in Table A must be adjusted to exclude the levy of 2 per cent.

So a foreign resident who is a non-dependant for tax purposes should expect 15 per cent on the taxed element rather than 17. The same principle runs through estate income, where the ATO tells trustees that a non-resident beneficiary’s share of the estate’s net income is taxed to the trustee “at the non-resident tax rates” and “no Medicare levy is payable”.

The family home when the beneficiary is a foreign resident

The main residence exemption is the assumption most families make and the one most likely to fail. The ATO is unambiguous: “Foreign residents can’t claim the main residence exemption for property sold after 30 June 2020, unless they satisfy the requirements of the life events test.” Property acquired before 7.30pm Canberra time on 9 May 2017 and sold by 30 June 2020 sat under transitional treatment, which has expired.

That test is narrow. The person must have been a foreign resident for tax purposes for a continuous period of six years or less, and within it one of three things must have happened: the person, their spouse or their child under 18 had a terminal medical condition; the spouse or a child under 18 died; or the capital gains tax event happened because of a formal agreement following a marriage or relationship breakdown. Ordinary emigration is not on the list.

For estates, the rule travels. The ATO states that if you are a foreign resident for tax purposes when you die, the rules also apply to “legal personal representatives, trustees and beneficiaries of your deceased estate, surviving joint tenants, special disability trusts”. A cash-flow trap sits on top of that. From 1 January 2025 foreign resident capital gains withholding applies at 15 per cent to the value of all property, replacing an earlier 12.5 per cent that bit only at 750,000 dollars and above. That share of the price is withheld at settlement whether or not any gain was made.

Dying without a will when the next of kin are in India

Intestacy is decided by the law of the Australian state, not by family expectation. In New South Wales, Legal Aid NSW sets out the order. A spouse whose children are all children of that relationship takes the whole estate. Where there are children of a previous relationship, the spouse takes the personal effects, a statutory legacy and half the remainder, and those children share the other half. Where there is no spouse, the children take equal shares. After that come parents, then full and half blood brothers and sisters, then grandparents, aunts and uncles, cousins, and finally the State.

Nothing in that order asks where the relatives live or what passport they hold. The friction is procedural. Legal Aid NSW adds that a grant of administration “will only be made to someone who is entitled to the whole of the estate or to a share of the estate”, then the sentence that catches overseas families: “An administrator who lives outside of Australia can’t apply for a grant unless a Power of Attorney is made.” A widow in Delhi cannot simply file the papers. She must first find and instruct someone here.

Certificates, apostilles and the months in between

The authentication step is settled. Australia acceded to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents on 11 July 1994, in force from 16 March 1995, and India acceded on 26 October 2004, in force from 14 July 2005. India’s accession drew objections from some contracting states, but not from Australia. An apostille issued in India is therefore effective here, and one issued in Australia is effective there.

That does not make the paperwork quick. An executor dealing with an Indian bank or sub-registrar will typically be asked for an apostilled death certificate, an apostilled copy of the will or grant, and often a legal heir or succession certificate issued locally. Each comes from a different office with its own queue.

Daughters, sons and the Hindu Succession Act

Where Indian assets are in play, personal law decides. The Hindu Succession Act 1956 applies to any person who is Hindu by religion and to any person who is Buddhist, Sikh or Jain by religion, and codifies intestate succession for them. Class I heirs include sons, daughters, widows, the mother and grandchildren, so a daughter has long taken an equal share of her father’s separate property on intestacy.

Ancestral coparcenary property was the exception, and the Hindu Succession (Amendment) Act 2005, in force from 9 September 2005, removed it by giving daughters equal rights with sons in that property. The same amendment abolished the rule permitting a creditor to pursue a son, grandson or great-grandson for a father’s debt on the ground of pious obligation. So an ancestral holding in India may now be divisible in a way the Australian will never contemplated, while the Australian assets pass strictly under that will or the state’s intestacy rules. Two estates, two logics, one family.

This article is general information only and is not legal, tax or financial advice. It does not take account of your circumstances. Cross-border estates turn on domicile, where each asset sits, your fund’s trust deed and the law of your state. See an Australian solicitor practising in succession law, and an advocate in India, before you make or change a will.

That 1973 list is the right place to finish. It was drawn up when the traffic between Australia and India was thinner, and has not caught up. Until it does, the burden sits with the person making the will. Two co-ordinated wills, a binding death benefit nomination that names the right people, and an honest look at which of your children the ATO treats as a dependant will do more than any paperwork filed after the funeral.