You may remember my video post from July (yodelayheehoo!) about international assets and beneficiaries. Well, this follow-up article looks at strategies to deal with international assets in an estate planning context.
I am often accused of seeing ‘La Vie en Rose’, so in the spirit of love and imagination, let’s just for a minute teleport to our petit chateau just outside the village of Beynac-et-Cazenac on the banks of La Dordogne, where we enjoy a pique-nique with the one we love and adore on a beautiful sunny and bright summer afternoon, with a Grand Cru Chablis, a perfectly baked baguette, Brie de Meaux, locally cured jambon, homemade foie gras, freshly picked strawberries, olives … sorry I digress.
So what to do with our magnificent 13th-century chateau where we have the privilege of soaking up the warmth, romance and character embedded in the worn limestone walls so rich in history, the wonky stone floors, the crooked timber beams, the lush green views of the river valley from the gravel terraces … sorry I digress again.
Nowadays it is so common for Australians to live overseas and own substantial assets in different jurisdictions.
Each country has its own laws relating to the making of wills and to the distribution of intestate estates (if there is no will). The general position is that the law according to the person’s residence or domicile applies to movable assets (such as bank accounts, shares, and personal items). So if you are living in Australia, Australian law would apply to these things. However, the law where the property is located applies to immovable assets (such as our chateau).
In many jurisdictions, a will that is validly made in another country may be accepted and apply to all the will maker’s property wherever situated e.g. the UK will recognise an Australian will.
In some countries, however, foreign wills may not be acceptable, or provisions of the foreign will may not be valid. For example, in some countries, the concept of a trust, which is common in Australian wills, may not be recognised. There may also be forced inheritance laws at play which compel assets to be distributed in a certain way, for example to children, and we also need to be careful not to be caught by inheritance taxes or death duties in other countries.
Other countries are members of the UNIDROIT Convention which means that an ‘International Will’ is recognised in both countries. The requirements for an International Will are substantially the same as the requirements for making a will in Australia. The main additional requirement is that the signing of the will must be witnessed by three people - two witnesses who must also sign the will and an authorised person (such as a lawyer) who must sign both the will and a certificate in the form required by the Convention.
Although an International Will may be accepted in other countries, it may not be appropriate, particularly where the laws of the other country are different from the laws of the place where the will is made, or where there are language differences.
Our recommended course of action generally is to have a separate will (a concurrent will) which deals with foreign assets complying with the laws of that country. This avoids the time and increased costs of having to ‘reseal’ probate when it comes to proving the will.
So what to do with our chateau on the idyllic banks of La Dordogne? Well, I have an appointment with the local French avocat to prepare a will to determine its distribution, and I will definitely pass on the clause that Partners Legal has drafted to ensure that my French will and my Australian will do not revoke each other.
À bientôt, au revoir!
*There have been countless versions of La Vie en Rose recorded over the years, most recently Michael Bublé’s version with Cécile McLorin Salvant is awesome, and Lady Gaga also popularised it in A Star is Born. However, my personal favourite is still Edith Piaf’s 1940’s original https://www.youtube.com/watch?v=rzeLynj1GYM