Wills For Overseas Assets
You may be one of the growing number of Australians who has purchased a summer home in Europe.
Perhaps you like to trade shares on the New York Stock Exchange, or you have inherited assets located outside of Australia. Owning property or assets in both Australia and overseas can be fun, however, it can also be a logistical nightmare for your loved ones after you die. For this reason, when drafting a Will, you should keep in mind that you’re dealing with conflicting estate and taxation laws in foreign jurisdictions.
When it comes to Estate Planning for someone with assets outside of Australia, there are several strategies that can be considered.
One Will Does Not Fit All
In some instances, clients want a ‘One Will Fits All’ approach that deals with all their Australian and international assets in one Will. In most cases, this is not an ideal solution. Besides running the risk of the Australian Will not being recognised in some overseas jurisdictions, foreign laws can conflict with Australian succession and taxation laws.
For example:
In Australia, there is no ‘death’ or inheritance tax, however, in the United Kingdom and the United States there are;
In Australia, testamentary trusts in Wills are commonly used, however, German land law does not allow for the transfer of assets located in Germany to a trust; and,
In Australia there are not any forced heirship laws, however, in France forced heirship laws are in place.
Another problem with the ‘One Will Fits All’ approach is that there can be extensive delays in administering multi-jurisdictional Wills.
When Probate has been granted in the first jurisdiction, a re-seal of the grant of probate will be required in the second jurisdiction. If there are more than two jurisdictions, further re-seals will likely be required of the original grant of probate. In some instances, it can take Probate Courts up to four months to process applications. At worst, it is possible that it could take years to administer and wind-up multi-jurisdiction Estates with the ‘One Will Fits All’ approach.
Multiples Wills: A Will For Each Jurisdiction In Which You Own Assets
To avoid the conflicting legislation for Succession and Estate Taxation across jurisdictions where assets are held, it may be prudent to have a Will for each jurisdiction that specifically deals with the assets owned in that jurisdiction.
A clear benefit of having a separate Will for each jurisdiction is that each Will can be specific and favourable to the relevant jurisdiction’s legislation for Succession and Estate Taxation.
Having a separate Will for each jurisdiction in which you own assets can also speed up the timeframe for administering an Estate.
The administration can be on foot across each jurisdiction where a Will has been executed, rather than waiting on Probate being granted in the first jurisdiction, then waiting on a re-seal of the original grant of Probate to occur in the other jurisdiction/s.
It is important if you do go down the path of multiple Wills, that the lawyers in each jurisdiction are communicating with one another when drafting the documents.
At a minimum, lawyers in each jurisdiction should at least be aware of any other Wills dealing with assets in other jurisdictions.
If you do have assets both in Australia and abroad, it is important that you engage with a lawyer. An experienced lawyer can advise you on dealing with your Australian assets in your Estate Planning and discuss with you your options on whether another Will is required for your overseas assets. If another Will is required, your Australian lawyer can work with you to find a foreign lawyer to assist.
Author: Mark Murnane, dedicated Wills and Estate Planning Lawyer
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
