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VIC Separate Wills for Australian and Overseas Assets?

Discussion in 'Wills and Estate Planning Law Forum' started by Aussiebeader, 7 June 2015.

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  1. Aussiebeader

    Aussiebeader Member

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    My friend has moved back to the UK . She needs to update her will but has been told she may need to have two separate wills...one for her UK assets and one far her Australian assets. Can any one clarify the situation for me?
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi Aussiebeader,

    Yes, I would agree with this advice. She should make a will in each state/country she has property in (particularly if it is real estate). The reason is that the distribution of property located in a state/country is governed by the legislation and laws of that state/country. Therefore, any property in the UK will be governed by the laws of wills and probate in the UK, while the property in Australia will be governed by Australian law. The requirements for a valid will in the UK may differ from that in Australia. Who can be an executor of the will may also differ. Hence, it is best to engage in a foreign lawyer for UK assets and Australian lawyer for Australian assets. Having two separate wills makes it easier to administer, easier to seek probate, easier for the executor and for the beneficiaries (when it comes to administering the will and distributing the estate).

    Further, it is a good idea to have an executor local to the country. Hence, an executor for the will in the UK over UK property and an executor for the will in Australia over Australian property. This is because it is extremely difficult to administer a will (e.g. selling real estate, accounting for the assets) without being physically present in the state/country, and so, will be costly for an Australian executor to constantly travel to the UK and then back to Australia to look after both wills.

    Both wills should refer to one another though and explicitly carve out the assets located overseas, otherwise, one will may override the other, leaving the other will invalid and the assets of that country (because it would be unaccounted for in the first will) to fall under the rules of intestacy.
     
  3. Tim W

    Tim W Lawyer

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    I agree with @Tracy B above.

    It will involve some sophisticated drafting of both documents*
    and a fair bit of collaboration between the lawyers in each country.**
    But it's very do-able.
    .
    I agree with the suggestion to have a local executor in each country.
    I would add that, while I would expect the executors to be collaborating,
    it may be simple and convenient to keep them separate.
    That is, I do not see a need to make them joint executors of both wills.

    Your friend may find it convenient to use her lawyers in each country as her executors.
    While there may be varying local technicalities in each country, both sets of lawyers
    will be working within their scope.

    For practical purposes, your friend would be well advised to include in her Instructions to each lawyer
    an express authority for each to deal with*** the other.

    This may all sound complex and scary, but it's not, really.
    It's all about capturing and accurately expressing your friend's testamentary intentions ("her wishes", so to speak)
    This kind of thing is not uncommon (especially between Australia and the UK)
    and is really just a bit more grunt work for the lawyers in the setting-up.


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    * For example, all references in each to the other document,
    and to any particular assets, will need to be both express and precise.

    ** Yes, she will indeed need one lawyer in each country

    *** That is, to talk to, write to, and share information with, each other, etc.
    Basically, you would be giving them express permission to talk to each other about things that would, in the normal course of events, be strictly confidential.
     
    Tracy B likes this.
  4. Tracy B

    Tracy B Well-Known Member

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    I agree with @Tim's response above.

    Just to elaborate on this:
    • It is very common to have two (or more) separate wills for each jurisdiction
    • These wills are generally separate from one another (as in, each executor can administer their will without referring to any others)
    • Within the will, there should be express reference to any other wills made by the testator (will maker) and express carve out (e.g. "this will only deals with tangible property located in Australia and intangible property registered in Australia, and will not deal with any property belonging to the testator that is located or registered overseas")
    • As @Tim suggested, it is best to give each executor power to contact other executors, and testator's lawyers, to access information, documents and assistance for the purposes of administering their will. Then, include another term that provides each executor will use their best endeavours to cooperate with another executor upon request
     
  5. Aussiebeader

    Aussiebeader Member

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    Thanks I have passes this information onto my friend. She is very grateful for your advice.
     

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