Can I include my overseas assets in my Will?

In multicultural Australia, it’s common to hold assets overseas as well as in Australia. But have you considered what happens to your overseas assets if you pass away? Does your Australian will cover them or 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 rules and 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 requirements of the Convention. Whether an international will is appropriate depends on the country in which the assets are located and whether it is a party to the Convention.

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. But although the Convention provides uniformity on the formal requirements for a will, it doesn’t address:

  • the local laws which apply;
  • who can apply for probate;
  • where probate can or should be taken;
  • family provision applications (who can make a claim and in which jurisdiction);
  • inheritance rules specific to each country (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 (particularly immovable assets such as land) 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 of the countries 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 may cause difficulties, because the Court in each country will want to retain the original will.
  • there may also be delays caused by the translation and interpretation of   will made in another country;
  • there may be tax savings and reduced court fees where a particular country is dealing only with property within that country rather than with all of your estate’s assets;
  • administrative difficulties can occur if the original will is held in one country while there are assets in another country which have to be distributed;
  • the probate process can be significantly simplified for your family and executors because the executors have a local legal advisor to guide them through the process and the cultural differences.

When making wills in separate countries, it’s very 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 ensure that your wills don’t contradict each other or that one will doesn’t inadvertently revoke (cancel) another.

An international will may still be appropriate if most of your assets are in Australia with a modest asset (such as a bank account) in a signatory country where a grant of probate is likely to be necessary.

What now?

If you have assets in countries other than Australia, contact us for legal advice as to the best structure for your situation to ensure that your assets are disposed of in accordance with your wishes and that the estate administration process is as cost-effective and streamlined as possible.

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