When considering writing a Will or getting your Estate Planning underway, a key consideration is whether you have any significant assets, or people who you wish to benefit, in multiple countries. In this article we will be considering estate planning where assets or beneficiaries exist in both Australia and the United States.
As you may expect, not all countries have the same laws and when it comes to Estate Planning overlooking this distinction can have negative consequences. Laws relating to taxes, property bequests, gifts, inheritance rights, trusts and many other aspects of wealth transfer and future planning can vary significantly from place to place. In the US, these laws can often vary from State to State. These laws also change over time, so it’s important that the lawyer you consult with is up to date on the current laws that will apply in the relevant jurisdiction. Sometimes, in order to obtain the best advice, this may mean consulting with a lawyer in each location – just to make sure that all relevant considerations are taken into account.
When it comes to international estate planning, the initial questions to consider include:
What is your official country of residency (for tax purposes)?
What is your citizenship status? Or do you have dual citizenship?
Where are the majority of your assets located? Did you originally live in Australia and then move to the US, or vice versa, and retain assets in both countries?
Where do your intended beneficiaries live? Are they all in Australia? All in the US? Or both countries?
Do you own real property (land) in either country?
Do you have superannuation or pension accounts in either country?
Which country would you prefer to be your “final resting place”?
There are lots of questions to consider with an international estate plan.
Can you see a pattern forming here with our line of questioning? All of these questions, and many more depending upon your personal circumstances, are vital elements of a comprehensive estate plan that properly deals with the intricacies of having assets and / or beneficiaries located in both Australia and the United States.
Many families find that they are divided across multiple countries, or spend time living and accumulating assets in different countries over the course of their lifetimes. Sometimes it just doesn’t make financial sense to sell up everything in one country when you move to another. Careful and tailored estate planning that considers these intricacies doesn’t need to be difficult, expensive or complicated. It’s so important that these factors are not overlooked, as there can be unintended consequences for doing so.
What do we recommend as Australian Estate Planning Lawyers for International Estate Planning?
Our preferred approach is for locally based experts to work together to ensure that the client’s intentions will be achieved in each jurisdiction. If you are based in Australia, but you have assets in the US or you would like to benefit somebody based in the US in your Will, then we may recommend that we collaborate with a trusted US lawyer to confirm that our strategy is able to be implemented successfully given the variance in local laws.
In many situations, we would recommend that our clients draw up separate Wills to cover assets in different countries. Wills, and the accompanying legal advice from a trusted professional, that are tailored to a specific country will take into account the laws and regulations of that country. This is a much better plan than trying to administer an Australian Will in the US, or vice versa.
What happens if I don’t have a Will or relevant documents in each country when I need a Will that crosses national borders?
It is possible for a foreign Will to be administered in Australia, or for an Australian Will to be administered in another country. If a person passes away and they only have one Will, then it will apply to all of their assets no matter where in the world such assets are located.
The main issues with this are that it can be a very difficult job for the Executor; it can be very expensive for the estate as local experts will usually need to be hired to deal with translations and the legal interpretations of the Will in each country; there is a huge risk that documents will be lost or delayed as the original signed documents will usually be required by the Probate Courts of each country; and the Estate or beneficiaries themselves may face large tax bills that could possibly have been avoided or minimised with proper planning.
The bottom line is, when you have assets or beneficiaries located in both Australia and the US, your estate planning should be tailored appropriately. That may mean obtaining legal advice in both countries to ensure that the local laws are taken into account, which is ultimately in the best interest of all concerned.
How can Burke Lawyers help if you need an International Estate Plan prepared?
At Burke Lawyers, our Wills and Estates Lawyers have experience in International Estate Planning with a growing network of legal contacts overseas to meet this need.
Meghan Warren, Principal and Director of our law firm is one of the few Australian lawyers admitted in the state (Victoria) and federal jurisdictions of Australia and as an Attorney at Law to the New York State Bar in the United States.
If you think you have assets or beneficiaries who reside overseas and you need to prepare a Will that addresses this cross border consideration contact us today on +61 3 9822 8588 or email HERE to find out how our Wills and Estates legal team can help.
