Should I have different wills in different countries?

In today’s globalised world, it is increasingly common for Australians to hold assets in multiple countries. Whether these include real estate, shares, or overseas bank accounts, owning property abroad raises important questions about estate planning. For Australian residents, one key consideration is whether a single Will can cover all jurisdictions or whether it is preferable to have a separate Will in each jurisdiction. The answer depends on the complexity of your estate, but in most cases, preparing different Wills for each country is a prudent and legally sound approach. Understanding how Australian succession law interacts with foreign jurisdictions is key to protecting your estate.

Why separate wills may be necessary

Having separate Wills for assets held in different countries can make estate administration far simpler and more efficient. Without proper planning, executors may face significant legal and procedural hurdles when dealing with international estates. Below are several reasons why separate Wills are usually recommended by estate planning lawyers.

1. Probate requirements

Each country has its own probate process. If you hold assets overseas, the executor may have to apply for probate in every jurisdiction where property exists. Attempting to use one global Will can cause delays and added expense, as executors must apply for probate in multiple countries. By contrast, preparing a separate Will for each jurisdiction allows a local executor to manage assets under local laws, reducing complexity and time.

2. Appointment of executors

Different legal systems have their own rules for administering estates. Appointing local executors who understand the country’s language, documentation requirements, and Court procedures can greatly simplify matters. It also helps avoid cross-border complications that arise when a single executor attempts to act across multiple jurisdictions.

3. Validity of execution

A Will validly executed in Australia might not meet the signing and witnessing requirements in another country. To ensure enforceability, each Will should comply with the specific formalities of the jurisdiction where it applies. This will help prevent a potential dispute about the validity of the Will.

4. Mandatory succession and heirship laws

Many countries, particularly in Europe, have ‘forced heirship’ rules that state to which beneficiaries assets must be distributed. For instance, in France or Italy, a portion of the estate must pass to children or spouses, regardless of the Will’s contents. A Will drafted solely under Australian law may not account for these provisions, so preparing localised Wills ensures compliance with mandatory succession laws.

5. Inheritance taxes

Australia does not impose inheritance tax, but some foreign jurisdictions do. If you own property overseas, your estate may attract foreign taxes. Having separate Wills allows for country-specific tax planning, helping to minimise double taxation and ensuring beneficiaries receive the maximum intended benefit.

Avoiding conflicts between wills

When signing Wills in multiple jurisdictions, care must be taken by the testator to ensure they do not revoke each other. Most Wills include a revocation clause cancelling prior Wills, so each document should clearly state:

The jurisdiction in which it applies
That it does not revoke Wills made in other jurisdictions

If you own assets in multiple countries, preparing separate Wills in each jurisdiction is often the most practical and secure approach. This ensures compliance with local succession and tax laws while reducing delays during probate.

Summary

Cross-border estate planning is complex and should only be undertaken with expert legal assistance. Maurice Buckley, CT. Poole & Son has extensive experience in international estate administration, probate, and Will drafting. We collaborate with overseas legal professionals to ensure your Wills are legally valid in each jurisdiction and align with your overall estate strategy.

Call us on (02) 9922 3322 to book a confidential consultation with one of our experienced Estate Lawyers.

Should I have different wills in different countries?