In our connected world, it’s increasingly common for Victorians to have a footprint that spans the globe. You might own a holiday apartment on the Gold Coast and another in Queenstown, an investment portfolio in New York, or shares in a London-based company. This global reach is exciting, but it adds a layer of complexity to one of life’s most important legal tasks: planning your estate.
A question our estate planning lawyers at Hayton Kosky frequently hear is, “I have assets overseas. Can my Victorian will handle them, or do I need something else?”
The short answer is that while a single Victorian will can cover your worldwide assets, it’s often not the most efficient or effective strategy. Relying on one will can create a maze of legal complications, delays, and unexpected costs for your beneficiaries. Let’s explore the common approaches to see why.
The All-in-One Australian Will: A Risky Bet?
At first glance, creating a single, comprehensive will in Victoria to manage your entire estate seems logical. The process, in theory, is straightforward: your executor obtains a grant of probate from the Supreme Court of Victoria, and then that grant is “resealed” in the foreign country where your assets are. A reseal is a legal process where a foreign court formally recognises the validity of the Victorian grant, authorising your executor to act there.
However, this path is often riddled with potholes. Different countries have vastly different legal frameworks, succession laws, and tax systems.
- Legal Incompatibility: A trust structure that is perfectly valid and advantageous in Australia might be unrecognised or penalised in a civil law country like France or Japan. This could unravel your entire estate plan.
- Forced Heirship Rules: Many countries have ‘forced heirship’ laws that dictate a fixed portion of your estate must go to specific relatives, regardless of what your will says. A Victorian will that doesn’t account for these rules could face a lengthy and expensive court challenge overseas.
- The Resealing Quagmire: The resealing process itself can be a bureaucratic nightmare. It’s often slow and costly, requiring local legal advice to navigate foreign court procedures. These delays can place immense stress on your loved ones and lock up assets when they’re needed most.
Relying on a single will is like using a standard key for a series of unique, international locks. It might work for some, but for many, it simply won’t fit.
The Twin Wills Strategy: A Safer Approach for Global Assets
For Victorians with significant overseas assets, the generally preferred strategy is to have separate wills for each country where assets are held. This means you would have:
- A primary Victorian Will: This will exclusively deal with your assets in Australia.
- A foreign Will: A second (or third) will, drafted by a lawyer in that specific jurisdiction, to deal only with the assets located in that country.
While this requires more coordination upfront, the long-term benefits are substantial:
- Streamlined Administration: Your executors can apply for probate simultaneously in each jurisdiction. The Australian executor manages the Australian assets, and the foreign executor manages the foreign assets. This avoids the resealing bottleneck and dramatically speeds up the process.
- Tailored and Tax-Effective Planning: Every country has its own inheritance and capital gains tax rules. A separate will allows a local expert to structure your affairs in the most tax-effective way for that jurisdiction, maximising what your beneficiaries receive.
- Local Expertise: Appointing a local executor is invaluable. They understand the language, the legal system, and the practical steps needed to manage assets—from selling property to dealing with local banks and tax authorities.
The critical element here is careful drafting. Each will must be precisely worded to limit its scope to the assets in its jurisdiction, preventing any accidental overlap or cancellation of another will. This is not a DIY task; it requires skilled coordination between your Australian and overseas legal advisors.
What About an ‘International Will’ in Victoria?
To simplify cross-border succession, Australia is a signatory to the Convention Providing a Uniform Law on the Form of an International Will 1973. In Victoria, the rules for this are embedded in the Wills Act 1997, which came into effect on 10 March 2015.
An “international will” is recognised as formally valid by all signatory countries. This can be a useful tool, as it avoids arguments about whether the will was signed and witnessed correctly according to each country’s specific rules.
However, it’s not a silver bullet. The international will only governs the form of the document, not its substance. This means that while the will is accepted as validly made, it doesn’t override local succession laws like forced heirship or foreign tax obligations. It can be a component of a global estate plan, but it rarely replaces the need for jurisdiction-specific advice and, often, separate wills.
The Hayton Kosky Verdict: Be Proactive
Navigating the complexities of multi-jurisdictional estates is a specialised field. For most Victorians with international assets, a carefully coordinated strategy of multiple wills is the most robust, efficient, and secure way to ensure your wishes are carried out smoothly.
A proactive approach today can save your family a world of stress and expense tomorrow. At Hayton Kosky, we specialise in crafting comprehensive estate plans for clients with both local and international assets. We can work with our trusted network of overseas lawyers to build a seamless plan that protects your legacy, wherever your assets may be.
If you hold assets overseas and want to secure your estate plan, contact us for a confidential discussion.