Foreign assets: When are they to be distributed in accordance with the deceased’s Will and relevant State law?

Written by Terry Johansson | 27th September 2013

An asset in a foreign country can be dealt with by a will made in another country eg Australia, if that will is accepted in the foreign country as a legal will.

However the operation of the Australian Will in that foreign country will be affected by the laws of that foreign country.

This is especially so in relation to an asset that is immoveable, such as land or a house.  So even if the Australian will operates over the land in the foreign country, a claim against a Will regarding that asset can usually only be made pursuant to the laws of that country.  The laws of the various States of Australia that permit some-one to challenge a will cannot apply to land in another country.

So if an Australian will leaves foreign property to one person, the laws of that foreign county may dictate that the land must go, at least in part to some close family member under the “forced inheritance” laws of that foreign country.

Cash held in a foreign bank account may be able to be transferred to the deceased’s Australian bank account to be distributed in accordance with the deceased’s Will. However, the foreign bank may require a copy of the Will, grant of Probate and death certificate before agreeing to the transfer. These documents may need to be translated.

Certain provisions in an Australian Will that deal with foreign immoveable property may not be valid in the foreign country.

The deceased may have prepared for such a situation and executed a Will in the foreign country in which the immoveable property is located. In this situation, this property will be divided in accordance with the foreign Will, but if it is not compliant with laws such as the “forced inheritance” laws of that foreign country, then the foreign Will only has limited application.

A foreign Will should be examined carefully.  The deceased may have unintentionally  cancelled or revoked the foreign Will by later executing a Will made under in Australia.  This would mean that the foreign Will is no longer valid.

If there is a foreign Will,  then the executor appointed under that Will must make an application for Probate in that foreign country. It is likely that the steps and documents required to obtain Probate in the foreign country, including any requirement to pay inheritance tax on the Estate, will be different from the laws of Australia.

Where assets are located overseas or a foreign Will exist, you should obtain legal advice from a solicitor. You may also need to obtain advice from a solicitor in the foreign country where the assets or Will is located.

In some cases, a foreign Will may be registered for Probate in another country. This would mean that the terms of the foreign Will apply to the assets of the country in which Probate was granted.

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