Estate Planning when you have Foreign Investments

Do you have investments both in Australia and overseas?

It is becoming increasingly more common for individuals and small to medium structures to invest internationally, whether it be in real property or in business. Similarly, we are seeing a rise in the number of clients who have moved from overseas to Australia and have assets in both jurisdictions and want to make sure that their Wills provide for both their Australian and foreign assets.

Given the rise in international investments, it becomes a relevant consideration as to how these assets are treated in your estate planning and more importantly, how these assets are to be disposed of once you pass away. The questions that often arise are: “Will my Australian Will be valid in a foreign country?”, “Will my overseas Will be valid in Australia” or “Do I need a Will in both countries?”.

For most of our clients who have asked this question of us, our answer has been, in most cases, “it depends on the law of that foreign country”. This means that when preparing your Will and considering the overseas assets you own, it is best practice to obtain advice from a lawyer who is familiar with the succession laws of that foreign country. After all, in Australia alone, we have different succession laws for each separate state (albeit they are all very similar).

As a general rule of thumb, we encourage clients to have Wills in both countries, in the event that one country does not accept the Will of the other country when it comes time to obtain a Grant of Probate for your estate. Whilst our Queensland Courts accept Wills and a Grant of Probate from most countries (including New Zealand), other countries may not be as accepting of your Australian Wills when dealing with your assets in that country.

The main points to consider are:

1. What type of document can create a valid Will in the foreign country?

2. What are the witnessing requirements when executing your Will?

3. What are the probate laws in relation to administering your Estate (for example, are original Wills required or are copies fine, who is responsible for administering your Estate, costs involved, is Probate necessary etc);

4. If you do decide to have a Will in both countries, are the Wills consistent with each other? If not, this could cause further difficulty and expense when you pass away.

There are also tax and duty issues that you should consider when preparing your succession plan for your overseas assets. For example, the United Kingdom imposes “inheritance taxes”, where in Australia the only implication may be for stamp duty (when transferring properties) and Capital Gains Tax.

Takeaway points: think about what assets you own in Australia and overseas, review your Will if you already have one, and talk to a lawyer who is familiar with the laws of the foreign country. It may be the case where you will need to prepare a separate Will for your assets in that foreign country to ensure that your overseas assets can be dealt with upon your passing.

Lockett McCullough Lawyers regularly obtains re-seals for Grants of Probate from other countries, so we are well placed to assist with recommendations regarding your international Wills. Please don’t hesitate to contact either of our offices if you require individual advice about your Wills and estate planning or if a loved one has passed away with an overseas Will but has assets in Australia and you need assistance – (07) 3870 8244 (Toowong) or (07) 3264 7692 (Albany Creek),

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