Since giving effect to the Hague Convention on International Wills in the NSW Succession Act 2006, NSW residents with assets in a foreign country, such as the UK, have had the advantage of being able to make a will in NSW that can be administered in the UK.
To comply with the provisions of the Convention, the will must be in a particular form, witnessed as required and have a prescribed certification at the end. This is arranged by your solicitor.
It also allows those owning property in Australia and overseas to have two wills. One dealing with their Australian assets and the other will dealing with UK assets.
Having one will for your Australian property and one for the UK has the following advantages: –
- Where beneficiaries in Australia inherit Australian property and beneficiaries in the UK inheriting UK assets, the costs of transferring assets between countries is avoided;
- The wills can be administered simultaneously, rather than successively. Probate in NSW takes about 6-9 months primarily due to Court delays. Instead of having to wait for Probate from NSW and then resealing that Probate in the UK, the UK Probate application can be commenced independently;
- As residents of Australia can be appointed executors of the Australian will and residents of the UK of the UK will, the significant tax disadvantages to the estate that arise in each jurisdiction in having a foreign tax resident as executor of the estate are avoided; and
- Court and legal fees are reduced where the Court filing fees and solicitors’ costs in each jurisdiction are on a scale fee- as probate is being obtained for the property within that jurisdiction only.
It is advisable to have the foreign will reviewed by a solicitor in the foreign jurisdiction once drafted to ensure that all the bases are covered in relation to the law in that jurisdiction. The is particularly the case when the inclusion of testamentary trusts in the will are contemplated.
Also, it is a good idea to have your accountant review the draft, to make sure that all your future estate planning tax requirements are met.
Further advice from an aged care financial planner may be advised if admission to an aged care facility is imminent, to minimise, as far as possible, the fees charged on admission and during any stay in the facility.