Will-makers sometimes hold assets overseas as well as in Australia. But do you know if your Australian Will will cover your overseas assets if you pass away? Do you need a separate Will in each country in which you have assets?

If you make a Will in New South Wales, it will cover assets that you own in other parts of Australia. But you can’t assume that any overseas assets you have will be included in your Australian Will. Every country has its own laws that apply to your assets when you die.

There are a couple of options available if you have assets in different countries.

An international Will

One option is to make an international Will. This is made in accordance with the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention). A country that is a party to the Convention will recognise a Will made in accordance with the Convention’s requirements. Whether an international Will is appropriate depends on whether the country in which the assets are located is a party to the Convention.

The Convention provides uniformity on the formal requirements for a Will. Australians who have made an international Will may find it easier to prove the validity of the Will in a country which has adopted the Convention. However, the Convention doesn’t cover:-

• the local applicable laws;
• who can apply for probate;
• where probate can or should be taken;
• family provision applications (who can make a claim and in which jurisdiction);
• country-specific inheritance rules (who can inherit and what they can inherit);
• tax and estate administration requirements; and
• revocation of the Will.

These things continue to be governed by:

• where your assets are situated;
• the jurisdiction where you make the Will;
• where probate is granted; and
• where you die or are domiciled.

A separate Will in each country

The other option is to make a local Will in each country in which you hold assets. This option is usually preferable because:

• it allows executors in different jurisdictions to apply for probate concurrently and independently of each other. If there is only one Will, probate must be obtained in one jurisdiction then re-applied for in the other jurisdictions, which can cause delay;
• if there is only one Will for all property, having probate of the original Will granted in one country and then in the others, the court in each country will want to retain the original Will;
• delays may be caused by the translation and interpretation of a Will made in another country;
• there may be tax savings and reduced court fees where a country is dealing only with property within that country rather than with all of your estate’s assets;
• there may be administrative difficulties if the original Will is held in one country whilst there are assets in another country to be distributed;
• the probate process can be simplified for the executor with a local legal advisor to guide them through the process and the cultural differences.

When making Wills in separate countries, it’s important to advise each of your lawyers that you either intend to make, or have already made, a Will in another country. This is to avoid your Wills contradicting each other or one Will inadvertently revoking (cancel) another.

An international Will may still be appropriate if most of your assets are in Australia with a modest asset in a signatory country where a grant of probate is likely to be necessary.

Here to Help

If you have assets in countries other than Australia contact us for free no-obligation initial telephone advice regarding the best structure for your situation to ensure that your assets are disposed of according to your wishes and that the estate administration process is as cost-effective and streamlined as possible.