Australia: Wills and estate planning for Australians with assets in different jurisdictions

The world is a global village and increasingly Australians are building their wealth by owning assets in more than one country.

And not just the shopping centre moguls, international sports stars and home-grown Hollywood actors.

After the GFC many ordinary Australians invested in the American real estate market and scores of Australians of European and Asian extraction have assets in this country as well as their countries of origin.

You may well ask: what happens to the foreign assets of these Australians if they were to die?

Australian wills overseas

An Australian will that deals with your assets will generally cover all your assets in your State and the rest of Australia without too much difficulty even though our succession laws are not yet totally uniform.

But an Australian will may not be effective in dealing with assets in another country for a number of very complex reasons.

Each country has its own laws relating to the making of wills and succession (the law of inheritance).

Generally speaking, if you make one will only, especially if your will is expressed to cover all of your assets wherever in the world you own them, your will should ultimately be effective in terms of dealing with those assets, if they are situated in common law countries which, like ours, derive their laws from the English legal system.

In some countries, however, an Australian will may not effective in terms of recognising your testamentary directions. This is particularly the case in European and Asian jurisdictions, which follow a civil, or codified, system of law.

So, how do you deal with your will and estate planning if you have assets in Australia and other parts of the world?

Basically, there are two avenues open to you: executing what is known as an international will or having a foreign will in addition to your Australian will.

International wills

An international will is executed pursuant to the Unidroit "Convention Providing a Uniform Law on the Form of an International Will 1973", being an international Convention to which Australia became a party in 2014 and which is recognised in South Australia under a 2015 amendment to our Wills Act.

Under the Convention, a will that is made pursuant to its requirements will be accepted in countries which are signatories to the Convention.

Whereas in Australian law for a will to be formal it must be signed before two witnesses, an international will requires four signatories: the will-maker (or testator), two actual witnesses, and a notary or suitably qualified legal practitioner who must sign both the will and a certificate in a form prescribed by the Convention.

The difficulty is that though an international will may be accepted in other signatory countries, it may still not be totally effective in terms of dealing with assets in another country because of the different laws of succession which may apply.

Therefore, an Australian will which deals with Australian assets cannot be simply duplicated and executed, witnessed and certified as an international will without running a very real risk that it will still not be operative in the foreign, albeit Convention-participating, jurisdiction.

Foreign wills

We think a better way to solve your estate planning requirements if you have assets in different countries is to adopt a "horses for courses" approach.

Your Australian will should specifically deal with your Australian assets.

You should also approach a foreign lawyer, or an Australian lawyer with experience and expertise in the foreign country, to carefully draft a foreign will, if necessary in the foreign language, specifically to deal with the foreign assets

These are known as foreign wills or concurrent wills.

Concurrent wills can be proven and validated simultaneously in accordance with the laws operating in the separate countries, whereas one will purporting to cover separate jurisdictions will need to proven in the "home" jurisdiction (called an application for Probate) and then later hopefully recognised in the "foreign" jurisdiction (called an application for re-seal of Probate).

The advantage for the internationalist testator of adopting a "horses for courses" approach is that he or she can take specialist local advice and tailor his or her will to ensure his or her assets are dealt with according to his or her wishes in each jurisdiction having regard to the requirements of each jurisdiction, rather than a "one size fits all, hope for the best" approach.

It is important that you ensure you are given proper advice about the appointment of executors in the different countries (it may not be practical to have one executor for all of jurisdictions), the local procedures for Probate and estate administration, and tax implications such as whether inheritance tax or estate duty applies.

However, there are a number of traps with having more than one will.

The testator must make sure that the separate wills do not have the effect of revoking each other, in which case the testator may be deemed not to have a valid will, which could be disastrous as the laws of intestacy (what happens when someone dies without a will) vary from country to country.

We have experience with helping our clients with multiple wills in different locations and over the years we have built up valuable associations with law firms and other professional advisers all over Australia and in countries as far flung and diverse as Italy, Greece and Serbia as well as the United States and the United Kingdom. If we cannot help you directly in your global estate planning, we will probably know of someone in any given part of the world who can.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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