Foreign Wills & Estates

Foreign Wills

Each country has its own laws relating to the making of wills and to the distribution of intestate estates (if there is no will).

Wills for assets in different countries

If you 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.

There are, generally, two methods of creating wills which are effective for assets in different countries. These are:

an international Will (a single Will disposing of all of your assets) or

concurrent Wills (a separate Will for each country in which you hold assets).

International Wills

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.

Whilst your Will may indeed be valid in Australia, it may not comply with the formalities in another country.

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.

Convention Providing a Uniform Law

It has become possible to overcome some of the issues by making an ‘International Will’ in Australia by the acceptance of the Convention Providing a Uniform Law on the Form of an International Will 1973 (‘the Convention’) in March 2015.

A will made in Australia in accordance the Convention is now 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.

A list of the countries are as follows:

Australia France Portugal
Belgium Iran Russian Federation
Bosnia-Herzegovina Italy Sierra Leone
Canada Laos Slovenia
Croatia Libya United Kingdom
Cyprus Niger United States of America
Ecuador

Concurrent Wills

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.

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.

Conclusion – Foreign Wills

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.

For specialist advice on Wills and Estates – please contact Darby Nunan or Helen Adoranti!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. For specialist advice on Wills and Estates – please contact Darby Nunan or Helen Adoranti!

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