If you have assets in two or more jurisdictions, an “International Will” could make your estate planning simpler as it would extend to the assets you hold in each jurisdiction that is a party to the UNIDROIT Convention , including Australia and the U.S.
To be an “International Will” the Will must satisfy the formal requirements specified in the UNIDROIT Convention. In summary these require: a single, written Will to be made by the testator, with each page to be numbered, and signed by the testator in the presence of two witnesses and a person authorized to act in connection with international Wills (and signed and dated by them), with their signatures to be placed at the end of the Will, each page, and a certificate attached to the end of the Will, signed by the authorized person, verifying satisfaction of the procedural requirements for the drafting and execution of the Will as an international Will.
Failing to comply with any of these requirements could negate the Will’s effectiveness as an “International Will” and could result in a deemed intestacy in each jurisdiction that you hold assets in, with unintended (and adverse) consequences (see our blog International Estate Planning: Intestacy in a cross-border context).
As an alternative to an International Will, having a Will in each jurisdiction in which you hold assets (“Jurisdictionally Specific Wills”) may allow for a more efficient administration of your estate in each of those jurisdictions, and a more speedy means of obtaining probate. However, this approach requires careful consideration and that each Will be appropriately drafted. For example:
• care needs to be taken to ensure that a Will that is prepared later in time for another jurisdiction (Jurisdiction B) does not inadvertently revoke an earlier Will for another jurisdiction (Jurisdiction A), while not covering the assets in Jurisdiction A, as this in turn could result in a deemed intestacy with respect to the assets in Jurisdiction A; and
• each Will should extend to all assets located in that jurisdiction as at the date of death, including assets that may have been acquired or disposed of after the execution of the Will specific to that jurisdiction.
Our upcoming whitepaper International Estate Planning for U.S.-Australia cross-border clients which is due for publication in April 2020 provides an in-depth analysis of international estate planning issues.
If you have any questions, please contact:
Senior Tax Advisor
U.S. Australia Tax Desk