Australia: What impact does having assets overseas have on your Will?

Australia has a large immigrant population, so it isn't surprising that many of us hold assets overseas as well as in Australia. If you do have assets in more than one country, it's important to ensure that your Will properly disposes of your worldwide assets - not just those in Australia. One available option is to make a single Will disposing of all of your assets - an 'International Will'. Alternatively, you can make a separate Will for each country in which you hold assets. Below, we discuss some of the advantages and disadvantages of these two options.

One single Will to dispose of all of your assets:

Making one Will that disposes of all of your assets worldwide is certainly a simpler and cheaper way of disposing of your assets, at least as opposed to preparing a Will in a number of different countries. However, there are several issues with this approach. Each country has its own formal requirements that must be met in order for a Will to be deemed valid. Whilst your Will may indeed be valid in Australia, it may not comply with the formalities in a country such as Germany - and if you do have assets in both Germany and Australia, it may create a problem.

This is further complicated by the fact that when establishing whether a Will is formally valid in Australia, your moveable and immoveable assets are treated differently. In the case of 'moveable assets', e.g. bank accounts and shares, the Will must be formally valid according to the country of your domicile at the date of your death - whereas in the case of immoveable assets e.g. land, it is the law of the country in which the land is situated that applies.

If the Court has to consider these types of questions during the administration of your estate, it can both delay the process significantly and come at a notable cost to your estate.

Since the Australian Government acceded to the Convention Providing a Uniform Law on the Form of an International Will 1973 ('the Convention') in March 2015, it has become possible to overcome some of the above issues by making an 'International Will'.
If a person makes a Will in one of the countries that has signed up to the Convention, provided that the Will complies with the formal requirements set out in the Convention - it is held to be valid across all of the countries that have signed the Convention.
This means that your Executors will not have to prove that your Will is 'formally valid' when administering your estate.

Although Australia has signed up to the Convention, many countries have not. An International Will would only assist you if all of the countries in which you hold assets at the date of your death had signed the Convention. For a full list of the countries that have signed the Convention, please click here.

Another big drawback is that an International Will only assists with issues of 'formal validity'; they do not assist with other issues that can arise, such as whether the Will maker had the capacity to make the Will. Furthermore, your Executors will still need to seek advice from a lawyer in each country regarding the actual administration process.

A separate Will in each country in which you hold assets:

This option involves making a separate Will in every country in which you hold assets. In turn, each Will should be prepared by a lawyer who practises in that particular country. This may be more expensive and time consuming than the alternative single-Will option, but it is likely to make the overall administration of your estate smoother and more cost effective.

The primary benefit of having a Will in each country is that each respective lawyer will be an expert in their specific jurisdiction. They are therefore best placed to provide you with the most accurate and up-to-date advice with regard to the transfer of assets held in that country, and can ensure that your Will meets all of the relevant legal formalities.

As in a general sense, the benefits of obtaining specialist advice with regard to your Will are often significant. For example, if you have assets in a country that still imposes death duties, e.g. England and Wales, taking advice from a lawyer in that country could result in a substantial reduction in death duties on your death.
Similarly, some countries such as Italy and France have forced heirship rules - which may restrict your ability to leave assets to whoever you want. In these cases, a local lawyer will be able to ensure that your Will does not conflict with these rules.

If you do wish to make Wills for separate countries, it is 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 do not contradict each other or inadvertently revoke (i.e. cancel) the other. Instead, they should complement each other and only dispose of assets in that particular country.

Conclusion:

Due to the complex nature of estate planning and administration, particularly when you do have assets in separate countries - it is recommended that you seek proper legal advice in order to ensure that all of your assets are properly disposed of in your Will and that the administration process is as streamlined and cost effective as possible.

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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