We are forever travelling. I spent two years with my wife and son to complete my doctorate in tax and estate planning in England.
Many of us have real estate, bank accounts and pension funds overseas. Does your Australian Will cover these assets?
Legal Consolidated’s Wills (even the non-tax effective ones) are automatically drafted to include worldwide assets. (Tasmania has a unique signing structure for their Wills. All Legal Consolidated’s Wills comply also with Tasmanian law – as well as the laws in all Australian States and Territories.)
But, assets held in another country are subject to the laws of that country.
Which countries honour Australian Wills?
Most Commonwealth countries share a similar legal system. Usually, they automatically recognise Australian Wills. This is the case for the United Kingdom, New Zealand and Canada.
Further, under the Hague Conference on Private International Law these 82 countries automatically honour Australian Wills:
Bosnia and Herzegovina
China, People’s Republic of
Korea, Republic of
Republic of Moldova
Republic of North Macedonia
United Kingdom of Great Britain and Northern Ireland
United States of America
You get Probate in Australia. (Probate is proving the Will.) You then get the Probate ‘resealed’ in the other country.
A separate Will in each country in which you hold assets
Another approach it so build your Wills on our website, sign them and email them to the lawyer in the other country. That lawyer prepares their own Will which only covers assets in that overseas country. These are called ‘concurrent Wills’. Your foreign Will is drafted carefully so it does not revoke your Australian Will.
A benefit in having a Will in each country is that each respective lawyer is an expert in their own jurisdiction. Each Will is structured with the most accurate and up-to-date advice. It ensures that your Will meets all of the relevant legal formalities.
Australia signed the Convention Providing a Uniform Law on the Form of an International Will 1973 in 2015.
The Convention provides uniform laws for a new type of Will called an ‘international Will’. An international Will under the Convention is recognised as a valid form of Will. This is in all countries that are party to the Convention.
All States and Territories in Australia permit and honour international Wills under the Convention. Australia recognises and Legal Consolidated can prepare a document called an International Will. However, they are a waste of time. They are too complex. Few countries signed the convention. We rarely prepare them. We prefer one Australian Will to cover world-wide assets or concurrent Wills (see below).
Does a new Will revoke an old Will?
Yes. Generally, a new Will revokes an older Will. You only have one Will. All older Wills are revoked by the fact you ended up making a newer Will. You do not need to tear up or destroy old Wills. (But life is simpler if you tear up old Wills.)
Can I make a Will in two countries? – Concurrent Wills
Assets in Australia and overseas? You are allowed to have more than one valid Will. (This is provided your second Will clearly states that previous Wills in other countries are not revoked. If the latest Will does not acknowledge the first, then the older Will is revoked.)
These are called concurrent Wills.
There are three advantages in having concurrent Wills:
- administering the estate in each country may be less expensive overall
- different country tax rules can be dealt with specifically
- the overseas jurisdiction may not permit trusts to be used. (As we only practice in Australia we can not give advice on overseas tax law.)
A disadvantage of also having an oversea Will? You automatically lose your 3-Generation Testamentary Trust, Divorce Protection Trust, Bankruptcy Trusts and many other trusts in your Australian Will for assets held in that other country. Before you go down the path of concurrent Wills speak to a taxation lawyer in that overseas country.
If they feel that an overseas Will is required, then they can prepare the overseas Will. But make sure that they:
- limit the overseas Will to just assets of that particular country;
- do not inadvertently revoke your Australian Will. If you do make an overseas Will you are welcome to email us both your Legal Consolidated Will and the overseas Will and we will confirm that the newer overseas Will has not overridden your Legal Consolidated Will. There is no charge for this service.
Just as Australia taxes Australian tax residents on worldwide assets, so to other countries may also do so. If you have assets overseas you need to find out from an overseas tax lawyer if you are taxed both in Australia (you will if you are ‘resident for tax purposes) and in the overseas country.
Please telephone us for help.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
Mobile: 0477 796 959
National: 1800 141 612