Do you have assets in more than one country, including Australia? If you do, or are likely to, have you thought about how your assets will be dealt with when you pass away?

Increasingly, Australians are moving overseas to work or live. If you accumulate assets in multiple countries, certain challenges with estate planning may arise depending on the laws of country where the assets are located.

Probate or letters of administration is the process of proving and registering with local authorities the last Will or intentions of a deceased person, and being given permission to administer those intentions. When a person dies, somebody has to deal with their estate according to the deceased's intentions and according to various applicable succession laws, and the grant of probate or letters of administration is the official authority to do so.

Where all of a deceased's assets are located in one state of Australia and the deceased was an Australian resident, estate planning is relatively simple and a single Will can deal with the deceased's assets. If assets are located in multiple states, a grant of administration of the estate may be required in each state depending on the type of asset. As the Australian states and territories work towards uniform succession laws, the differences between the estate planning laws of each state and territory are being reduced. However, when international elements are included, particularly those involving the interaction of different legal systems such as common law, civil law, Sharia law and customary law, problems can be more complex and the cost and stress to your estate and surviving beneficiaries can increase dramatically.

While most developed countries recognise the basic provisions in each other's succession laws, there are also major differences and laws are subject to change at any time. Deceased estates are a potential source of tax revenue for governments which, if they haven't already done so, may start taxing estates that could include assets located in a different jurisdiction, meaning less for beneficiaries. It's difficult or impossible for estate planners to be familiar with the legal systems of foreign jurisdictions, and accordingly, it's important to ensure you have correct structures in place to deal with your estate.

In determining which succession law applies, different jurisdictions will consider different factors such as the deceased's nationality, the law of domicile (where the deceased lived or intended to live), or the deceased's country of residence. For example, if at the time of death a person generally was a resident in France but ordinarily domiciled in India, with immovable property in Australia, then potentially three different laws of succession could apply to the assets in the estate.

Confused or worried?

Don't be. Simplifying the administration of your estate can be relatively easy by being proactive with your estate planning.

One of the most cost effective methods may be simply making more than one Will – each one specifically for the assets in the different jurisdictions. A person may execute a Will with the express declaration that it be restricted to dealing with assets within a specific jurisdiction.

Reasons to consider having separate Wills for the countries that your assets are located in include:

Quicker Administration of Estate

Where there are two separate Wills, for example one dealing with assets in Australia and the other where the assets are located abroad, the respective executors may obtain a grant of administration in each jurisdiction independently of the other. That is, they may apply for a grant of administration in both countries at the same time which will reduce the delay in administration of the estate. If a deceased only has one Will for all their property which is located in multiple jurisdictions, the respective executors may have to obtain the grant of administration in one jurisdiction and then apply for another grant in the other.

Each Will may also be prepared in the language and according to the formal requirements of the jurisdiction in which the assets are located. This should reduce the need for supplementary evidence and documents translating the contents of the Will in support of a grant of administration of the estate.

Tax Minimisation

If a deceased has executed a local Will that has incorporated various financial structures (such as trusts or instructions to delay the timing of gifting assets) in accordance with local tax and succession law, he/she may reduce the estate's tax liability (if any). This can ensure the government does not receive a financial windfall and/or that the beneficiaries do not shoulder a burdensome tax liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.