Is my Australian Will valid for overseas assets?

 

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 insurance, real estate, bank accounts and pension funds overseas. You can build a 3-Generation Testamentary Trust Will on our law firm’s website. However, do Legal Consolided Wills cover your overseas assets?

Legal Consolidated’s tax-effective Wills 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. This is as well as the laws in all Australian States and Territories.

However, assets held in another country are subject to the laws of that country.

Countries that honour Legal Consolidated’s Australian Wills

Under the Hague Conference on Private International Law, these 83 countries automatically honour Wills prepared by Legal Consolidated. We draft our Wills to satisfy the Hague Convention:

1. Albania
2. Andorra
3. Argentina
4. Armenia
5. Australia
6. Austria
7. Azerbaijan
8. Belarus
9. Belgium
10. Bosnia and Herzegovina
11. Brazil
12. Bulgaria
13. Burkina Faso
14. Canada
15. Chile
16. China, People’s Republic of (including provinces such as Hong Kong)
17. Costa Rica
18. Croatia
19. Cyprus
20. Czech Republic
21. Denmark
22. Ecuador
23. Egypt
24. Estonia
25. European Union
26. Finland
27. France
28. Georgia
29. Germany
30. Greece
31. Hungary
32. Iceland
33. India
34. Ireland
35. Israel
36. Italy
37. Japan
38. Jordan
39. Kazakhstan
40. Korea, Republic of
41. Latvia
42. Lithuania
43. Luxembourg
44. Malaysia
45. Malta
46. Mauritius
47. Mexico
48. Monaco
49. Montenegro
50. Morocco
51. Netherlands
52. New Zealand
53. Norway
54. Panama
55. Paraguay
56. Peru
57. Philippines
58. Poland
59. Portugal
60. Republic of Moldova
61. Republic of North Macedonia
62. Romania
63. Russian Federation
64. Saudi Arabia
65. Serbia
66. Singapore
67. Slovakia
68. Slovenia
69. South Africa
70. Spain
71. Sri Lanka
72. Suriname
73. Sweden
74. Switzerland
75. Tunisia
76. Turkey
77. Ukraine
78. United Kingdom of Great Britain and Northern Ireland
79. United States of America
80. Uruguay
81. Venezuela
82. Viet Nam
83. Zambia

You get Probate in Australia. (Probate is proving the Will.) You then get the Probate ‘resealed’ in the other country.

A new Will in another country destroys your Australian Will

You sign your Will. Three minutes later you sign a copy of that Will. That is silly. The first Will is now invalid. You cannot have two signed Wills. Each time you sign a Will it invalidates the last Will.

You see, every time you sign a new Will, your old Will is invalid.

For example, you sign an Australian Will. Three weeks later you sign a Will in New York. Your Australian Will is invalid. Four days later you signed a German Will, and now your New York Will is invalid, as well. Later you sign an Australian Will, now the German Will is invalid.

Each time you make a new Will, whether it be in Australia or another country it invalidates the previous Will.

A way to stop this is to make ‘concurrent Wills’.

A separate Will in each country in which you hold assets
– Concurrent Wills

Another approach is to build your Wills on our website, sign them and email them to a lawyer in the other country. That lawyer prepares their own Will to only cover 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 of 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 and defacto death taxes.

Do you wish to make your Australian Legal Consolidated Will only operate for Australian assets? Then:

1. at the time of signing your Legal Consolidated Will
2. in the same blue pen
3. in clause one
4. in front of the two witnesses hand write:

However, this Will does not invalidate my previous Will signed in [country] dated […. 20..].

Legal Consolidated 3-Generation Testamentary Trust Wills are designed for this.

However, if you do not have a Legal Consolidated Will then check to see if the Australian Will:

• is prepared under the Hague Convention?
• if the Will can be made ‘concurrent’?

The answer to both questions for Legal Consolidated Wills prepared on our website is ‘yes’.

Value of Concurrent Wills

Concurrent Wills are where you prepare separate Wills for each country where you own assets. You make a Will that applies to specific assets, or assets in a specific country.

You can even have more than two Concurrent Wills if you have assets in, say, three or more countries.

One Will relates to all of your property wherever situated – worldwide. This is other than your property in another country.

Making Concurrent Wills may seem complicated. However, it provides a faster distribution of the estate. This is important where there are tax concessions applying to assets of your estate which only exist for a short time after your death.

Concurrent Wills help avoid unintended consequences in distributing your estate in different countries. They avoid and reduce costs and taxes.

Waste of time to have concurrent Wills?

I have assets in two countries. Do I need two Wills?

Q: Professor Davies, my estate planning lawyer tells me it is a waste of time to have concurrent Wills. Instead, it is better to have an Australian Will prepared under the Hague Convention. And let the Australian Will deal with worldwide assets. 

I note that Legal Consolidated Wills built on your website are always drafted to comply with the Hague Convention. So does Legal Consolidated agree?

A: Firstly, check to see if all assets are situated within the 83 countries. Only those 83 countries are signatories to the Hague Convention. If so you do not need concurrent Wills. You then prepare one Will under the Hague Convention. (A copy of the Hague Convention is at the end of this page for your convenience.)

You are correct, all Legal Consolidated Wills built on our website are prepared per the the Hague Convention. And that is fine. So you do not need a second Will for the other country. 

But that is not the end of the story

The rule of thumb is that you build the tax effective Will in the high tax jurisdictions:

• For example, Australia and California have high and complex death duties. So in that case you build an Australian 3-Generation Testamentary Trust Will for your worldwide assets. You instruct your Californian estate planning lawyer to prepare a second Will (the concurrent Will) just for your assets in California.
• In contrast, if you have assets in Australia and say Singapore or the UK (which are less draconian on their death duties) then an Australian 3-Generation Testamentary Trust Will is probably all you need.

International Wills do not work

There is another type of Will. It is called an ‘International Will’.

Australia signed the Convention Providing a Uniform Law on the Form of an International Will in 2015.  Australia recognises and we can prepare a document called an International Will. However, ‘International Wills’ are a waste of time. ‘International Wills’ are too complex. Few countries signed the convention. We rarely prepare ‘International Wills’. It is better, instead, to just prepare the 3-Generation Testamentary Trust Will.

International Will requirements vs Australian Will requirements

The Convention tries to harmonise and simplify the requirements for a valid Will across countries. The requirements for an International Will are similar to Australian Wills. The similarities of an international Will and an Australian Will:

• in writing (not verbal)
•  signed by the Willmaker
• witnessed by two witnesses
• Willmaker understand the concept of a Will, what he owns and who his family is

The differences between an Australian Will and an International Will:

An ‘Authorised Person’ signs the International Will as a third witness. An Authorised Person is an Australian lawyer or Australian public notary. This is not required for a valid Will in Australia.

The Authorised Person signs a Certificate stating that the obligations of the Convention are satisfied. The Authorised Person then attaches this to the International Will. This is not required for a valid Australian Will.

An International Will requires the Willmaker and all 3 witnesses to sign every page of the Will.

Concurrent Wills are better than International Wills

A great advantage of a Concurrent Will (rather than an International Will) is you simply seek Probate for each Will in its own jurisdiction.

As explained above, a new Will revokes your former Will. Concurrent Wills must clearly state that a former Will is not revoked but is, instead, concurrent. Legal Consolidated provides free advice to your overseas lawyer. We are happy to telephone them.

All my beneficiaries are overseas? Who should be the executors?

Q: My client’s beneficiaries are all overseas. He is considering appointing his Australian friends as executors of his Will. Instead, is it better to appoint the beneficiaries as executors even though they do not live in Australia?

A: It’s best to appoint the overseas beneficiaries as executors and perhaps one Australian resident. Typically, beneficiaries have a vested interest in the efficient and cost-saving administration of the estate. This aligns with their goals with the responsibilities of an executor. Their location, whether in Australia or abroad, does not inherently impede their ability to act as executors. Modern communication methods, interpreters and the availability of professional local advice bridge the geographical gap.

What does an Executor do?

Executors are people named in your Will to carry out your wishes in your Will. Their responsibilities include securing a grant of probate (only if required), gathering your assets, settling debts and taxes, and distributing the remaining estate to your heirs as dictated by your Will.

Usually, the executors are also the beneficiaries.

Executors and Beneficiaries can live outside of Australia

Your Executors and Beneficiaries can be living in any country. They do not need to be living in Australia.

They do not need to have ever lived or ever been to Australia.

There is no requirement that your Executors or Beneficiaries speak English.

Executors can administer an estate and get Probate from anywhere in the world. They do not need to be in Australia to carry out the wishes in your Will.

(You, as the Australian Will maker, also do not need to be living in Australia. Australian expats can build Australian Wills on Legal Consolidated’s website.)

Extra tax burdens if there is no Australian Executor

If all your executors live outside Australia at the date of your death then your estate is classified as a ‘non-resident trust’. This classification suffers three extra death taxes (This is in addition to the usual four death taxes that all Australians suffer):

1. Your estate loses the annual tax-free allowance, usually available for three years following death.
2. Income generated on your Australian assets post-death incurs taxes at higher non-resident rates.
3. The estate might lose the 50% discount on capital gains tax normally on the sale of ‘Taxable Australian Property,’ such as real estate.

Consequently, your estate faces seven death taxes, rather than the usual four death taxes. These extra death taxes are discussed further below.

Make sure you have at least one Australian Executor in Your Will

When building your Will, one important decision is who to appoint as your executors—the person responsible for managing your estate after you die. While your executor does not need to live in Australia, there are financial consequences if all of your executors are non-residents of Australia. Therefore, your estate is classified as a ‘non-resident trust,’ leading to higher taxes. Below are the three main tax issues your estate could face.

1. Loss of the Tax-Free Threshold

Usually, when someone dies, their estate receives an annual tax-free allowance for three years. This means that during this time, the estate pays no tax on a certain amount of income. However, if your estate is managed by non-resident executors, it will not be eligible for this tax-free allowance. As a result, your estate may have to pay more tax than it otherwise would.

2. Higher Taxes on Australian Income

If your estate has income coming from Australian assets, such as rental properties or investments, this income would normally be taxed at resident rates. However, if all of your executors live overseas, your estate is taxed at higher non-resident rates. This means that the money earned from Australian assets is taxed more heavily than if you had an Australian resident as an executor.

3. Loss of Capital Gains Tax Discount

In Australia, there is usually a 50% discount on capital gains tax (CGT) when selling certain types of property, such as real estate. This discount can make a significant difference in how much tax your estate needs to pay when selling assets. However, if your estate is considered a non-resident trust, it may not qualify for this discount, resulting in a larger tax bill when selling taxable Australian property.

Why Having at least one Australian Executor is important

Having at least one Australian resident executor stops these additional death taxes. If your executors are all non-residents, your estate could pay significantly more tax. By appointing an Australian resident as one of your executors, you could help reduce the tax burden on your estate and ensure more of your assets go to your beneficiaries.

Look to friends and family who live in Australia to be your one Australian executor. As part of Legal Consolidated’s service we, at no charge, help your executor as to whether they need Probate. This is a free service.

While it is not legally required to have an Australian executor, it is important to consider the potential tax impact on your estate if all of your executors are non-residents. Having an Australian resident as an executor saves your estate from higher taxes and ensures a smoother process for distributing your assets.

How do I stop this foreigner death tax in Australia?

To stop these extra death taxes, consider appointing an Australian resident as one of the executors.

All executors of your Will do not need to be based in Australia. As long as one executor is an Australian resident, your estate will not be treated as a non-resident trust, thus avoiding these specific tax repercussions.

But what if the Executors need help?

If Exceutors need to get a final tax return then they can email accountants in Australia to quote that work. They can seek investment advice from a financial planner.

If they want a lawyer to prepare an application for a Grant of Probate then they can email lawyers to get a quote.

This is the same for real estate agents and other professionals.

As part of the service, included in the cost of the 3-Generation Testamentary Trust we will help your executors at no cost.

In NSW: Executors living outside of Australia appoint an attorney to get the Grant of Probate – Section 72 Probate and Administration Act 1898

Generally, in NSW the Supreme Court of New South Wales will not grant probate to a person living outside of Australia. This is even if you are an Australian citizen. Section 72 Probate and Administration Act 1898 (NSW) allows the administration to be granted to your attorney. You appoint some other person within NSW under a power of attorney to act for you as Executor.

For help building your 3-Generation Testamentary Trust Wills just telephone us. But before you ring us, start the building process first. It is highly educational. And the building process is free.

Does my Will operate in all states of Australia?

Yes, Legal Consolidated is a national law firm, and your Will is drafted to operate in all states and territories of Australia. Additionally, it conforms to the provisions of the Hague Convention, ensuring its recognition and effectiveness in most other countries as well. This means that regardless of where you reside or hold assets within Australia or internationally, the stipulations of your Will are designed to be upheld according to both local and international legal standards.

You can also build the eight different POAs and eight different lifestyle POAs – 16 in all – for every State and territory in Australia.

See also:

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Can Family Trust override the Family Court

Who builds your SMSF Deeds – a law firm or someone else?

11: Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions
Entry into force: 5-I-1964

CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS

(Concluded 5 October 1961)

The States signatory to the present Convention,

Desiring to establish common provisions on the conflicts of laws relating to the form of testamentary dispositions,

Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

Article 1

A testamentary disposition shall be valid as regards form if its form complies with the internal law:

a)  of the place where the testator made it, or
b)  of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
c)  of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
d)  of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or
e)  so far as immovables are concerned, of the place where they are situated.

For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.

The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.

Article 2

Article 1 shall apply to testamentary dispositions revoking an earlier testamentary disposition.

The revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under Article 1, the testamentary disposition that has been revoked was valid.

Article 3

The present Convention shall not affect any existing or future rules of law in Contracting States which recognise testamentary dispositions made in compliance with the formal requirements of a law other than a law referred to in the preceding Articles.

Article 4

The present Convention shall also apply to the form of testamentary dispositions made by two or more persons in one document.

Article 5

For the purposes of the present Convention, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator, shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications that must be possessed by witnesses required for the validity of a testamentary disposition.

Article 6

The application of the rules of conflicts laid down in the present Convention shall be independent of any requirement of reciprocity.

The Convention shall be applied even if the nationality of the persons involved or the law to be applied by virtue of the foregoing Articles is not that of a Contracting State.

Article 7

The application of any of the laws declared applicable by the present Convention may be refused only when it is manifestly contrary to “ordre public“.

Article 8

The present Convention shall be applied in all cases where the testator dies after its entry into force.

Article 9

Each Contracting State may reserve the right, in derogation of the third paragraph of Article 1, to determine in accordance with the lex fori the place where the testator had his domicile.

Article 10

Each Contracting State may reserve the right not to recognise testamentary dispositions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality.

Article 11

Each Contracting State may reserve the right not to recognise, by virtue of provisions of its own law relating thereto, forms of testamentary dispositions made abroad when the following conditions are fulfilled:

a)  the testamentary disposition is valid as to form by reason only of a law solely applicable because of the place where the testator made his disposition,
b)  the testator possessed the nationality of the State making the reservation,
c)  the testator was domiciled in the said State or had his habitual residence there, and
d)  the testator died in a State other than that in which he had made his disposition.

This reservation shall be effective only as to the property situated in the State making the reservation.

Article 12

Each Contracting State may reserve the right to exclude from the application of the present Convention any testamentary clauses which, under its law, do not relate to matters of succession.

Article 13

Each Contracting State may reserve the right, in derogation of Article 8, to apply the present Convention only to testamentary dispositions made after its entry into force.

Article 14

The present Convention shall be open for signature by the States represented at the Ninth Session of the Hague Conference on Private International Law.

It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 15

The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 14.

The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

Article 16

Any State not represented at the Ninth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 15. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.

Article 17

Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.

At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph.

Article 18

Any State may, not later than the moment of its ratification or accession, make one or more of the reservations mentioned in Articles 9, 10, 11, 12 and 13 of the present Convention. No other reservation shall be permitted.

Each Contracting State may also, when notifying an extension of the Convention in accordance with Article 17, make one or more of the said reservations, with its effect limited to all or some of the territories mentioned in the extension.

Each Contracting State may at any time withdraw a reservation it has made. Such a withdrawal shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Such a reservation shall cease to have effect on the sixtieth day after the notification referred to in the preceding paragraph.

Article 19

The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 15, even for States which have ratified it or acceded to it subsequently.

If there has been no denunciation, it shall be renewed tacitly every five years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period.

It may be limited to certain of the territories to which the Convention applies.

The denunciation will only have effect as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.

Article 20

The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 14, and to the States which have acceded in accordance with Article 16, of the following:

a)  the signatures and ratifications referred to in Article 14;
b)  the date on which the present Convention enters into force in accordance with the first paragraph of Article 15;
c)  the accessions referred to in Article 16 and the date on which they take effect;
d)  the extensions referred to in Article 17 and the date on which they take effect;
e)  the reservations and withdrawals referred to in Article 18;
f)  the denunciation referred to in the third paragraph of Article 19.

In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention.

Done at The Hague the 5th October 1961, in French and in English, the French text prevailing in case of divergence between the two texts, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Ninth Session of the Hague Conference on Private International Law.