Australia is a melting pot of nationalities and backgrounds and there are also a large number of Australians living and working overseas who consider Australia their permanent home (their domicile). Whilst it’s common to hold assets overseas as well as in Australia, you may not have considered what happens to those overseas assets when you die. Does your Australian will cover them? Do you need a separate will in each country?
A will that you make in New South Wales will cover assets that you own in other parts of Australia but you can’t assume that any overseas assets you have will be protected by 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
The first option is to make an international will which is made in accordance with the Convention Providing a Uniform Law on the Form of an International Will 1973. Countries that are parties to the Convention will recognise a will made in accordance with the requirements of the Convention. The appropriateness of an international will depends on where the assets are located and whether that country has adopted the Convention.
Australians who have made an international will may find it easier to prove that the will is formally valid in another country but whilst the Convention provides uniformity on the formal requirements for a will, it doesn’t address:
- the local laws which apply
- where probate can or should be taken
- who can apply for probate
- inheritance rules specific to each country (who can inherit and what they can inherit)
- family provision applications (who can make a claim and in which jurisdiction)
- revocation of the will
- tax and estate administration requirements.
- These matters continue to be governed by the jurisdiction where you make the will, where you die or are domiciled, where probate is granted and where your assets (particularly immovable assets such as land) are situated.
A separate will in each country
The second option is to make a local will in each of the countries that you hold assets. This option is usually preferable because:
- administrative difficulties can occur if the original will is held in one country while there are assets in another country and those assets have to be distributed
- if there is only one will for all property, there may be difficulties in having probate of the original will granted in one country and then in the others, because all countries prefer to retain the original will. There may also be delays caused by the translation and interpretation of the will in the other country
- there may be tax savings as well as reduced court fees where a particular jurisdiction is dealing only with property within the jurisdiction rather than with the total assets of your estate
- the probate process can be significantly simplified for your family and executors because the executors have a local legal advisor who is able to guide them through the process and the cultural differences
- executors in different jurisdictions may apply for probate at the same time and independently of each other. If there is only one will, probate must be obtained in one jurisdiction and then re-applied for in the other jurisdictions, which can cause delay
When making wills in separate countries, it’s extremely 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 inadvertently revoke (cancel) the other. An international will may still be appropriate if the majority of your assets are in Australia and you have a modest asset, such as a bank account, in a signatory country where the will is likely to require probate. If you have assets in countries other than Australia, you should seek legal 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 streamlined and cost-effective as possible.