Do you have assets in more than one country, including
Australia? If you do, or are likely to, have you thought about how
your assets will be dealt with when you pass away?
Increasingly, Australians are moving overseas to work or live.
If you accumulate assets in multiple countries, certain challenges
with estate planning may arise depending on the laws of country
where the assets are located.
Probate or letters of administration is the process of proving
and registering with local authorities the last Will or intentions
of a deceased person, and being given permission to administer
those intentions. When a person dies, somebody has to deal with
their estate according to the deceased's intentions and
according to various applicable succession laws, and the grant of
probate or letters of administration is the official authority to
Where all of a deceased's assets are located in one state of
Australia and the deceased was an Australian resident, estate
planning is relatively simple and a single Will can deal with the
deceased's assets. If assets are located in multiple states, a
grant of administration of the estate may be required in each state
depending on the type of asset. As the Australian states and
territories work towards uniform succession laws, the differences
between the estate planning laws of each state and territory are
being reduced. However, when international elements are included,
particularly those involving the interaction of different legal
systems such as common law, civil law, Sharia law and customary
law, problems can be more complex and the cost and stress to your
estate and surviving beneficiaries can increase dramatically.
While most developed countries recognise the basic provisions in
each other's succession laws, there are also major differences
and laws are subject to change at any time. Deceased estates are a
potential source of tax revenue for governments which, if they
haven't already done so, may start taxing estates that could
include assets located in a different jurisdiction, meaning less
for beneficiaries. It's difficult or impossible for estate
planners to be familiar with the legal systems of foreign
jurisdictions, and accordingly, it's important to ensure you
have correct structures in place to deal with your estate.
In determining which succession law applies, different
jurisdictions will consider different factors such as the
deceased's nationality, the law of domicile (where the deceased
lived or intended to live), or the deceased's country of
residence. For example, if at the time of death a person generally
was a resident in France but ordinarily domiciled in India, with
immovable property in Australia, then potentially three different
laws of succession could apply to the assets in the estate.
Confused or worried?
Don't be. Simplifying the administration of your estate can
be relatively easy by being proactive with your estate
One of the most cost effective methods may be simply making more
than one Will – each one specifically for the assets in the
different jurisdictions. A person may execute a Will with the
express declaration that it be restricted to dealing with assets
within a specific jurisdiction.
Reasons to consider having separate Wills for the countries that
your assets are located in include:
Quicker Administration of Estate
Where there are two separate Wills, for example one dealing with
assets in Australia and the other where the assets are located
abroad, the respective executors may obtain a grant of
administration in each jurisdiction independently of the other.
That is, they may apply for a grant of administration in both
countries at the same time which will reduce the delay in
administration of the estate. If a deceased only has one Will for
all their property which is located in multiple jurisdictions, the
respective executors may have to obtain the grant of administration
in one jurisdiction and then apply for another grant in the
Each Will may also be prepared in the language and according to
the formal requirements of the jurisdiction in which the assets are
located. This should reduce the need for supplementary evidence and
documents translating the contents of the Will in support of a
grant of administration of the estate.
If a deceased has executed a local Will that has incorporated
various financial structures (such as trusts or instructions to
delay the timing of gifting assets) in accordance with local tax
and succession law, he/she may reduce the estate's tax
liability (if any). This can ensure the government does not receive
a financial windfall and/or that the beneficiaries do not shoulder
a burdensome tax liability.
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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If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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