Deceased estates with overseas assets

A grant of probate or administration is an order of a particular court. Its authority is generally confined to the jurisdiction of that court and to places that recognise it. The Supreme Court's unusual applications guidance makes the point for Victoria: a grant made outside Victoria does not carry authority to deal with Victorian assets.

The same principle operates in reverse. A bank in another country, a foreign land registry or a foreign share registry may not accept a Victorian grant. Each jurisdiction decides what it requires, and some have their own succession procedures that do not depend on a court grant at all.

Choice of law in succession can be complex. As a broad starting point, questions about moveable property (such as money and shares) are often connected with the law of the deceased's domicile, while questions about land are often connected with the law of the place where the land is situated. Domicile is a legal concept, not just residence, and can be disputed.

These are general tendencies, not fixed rules for every case. Some countries apply different approaches, including forced heirship rules that reserve shares of an estate for particular family members, or choice-of-law provisions that allow a person to nominate a governing law. The result can depend on the countries involved, the type of asset and the terms of any will.

Section 17 of the Wills Act 1997 (Vic) provides that a will is taken to be properly executed if its execution conforms to the internal law in force in the place:

• where it was executed; or
• which was the will-maker's domicile or habitual residence at the time the will was executed, or at the time of death; or
• of which the will-maker was a national, either at the date of execution or at death.

This deals with the formal validity of execution. It does not answer every question, such as the meaning of the will or whether another law affects who is entitled to property.

Evidence of foreign law

The Court's guidance states that where an application is made in relation to a will executed in a foreign jurisdiction, an affidavit sworn or affirmed by a legal practitioner competent to practise in that jurisdiction, detailing the relevant law and commenting on whether the will was validly executed under it, would usually be required. A will in another language will also generally need a translation.

Some people make a separate will for assets in each country. This can be effective, but only if each will is drafted so that it does not revoke the other. A standard revocation clause in a later will may unintentionally revoke an earlier will made for another country.

Where there are multiple wills, the executor needs to identify which will governs which assets and whether each has been properly proved in the relevant place. The Victorian application should disclose all testamentary documents known to the applicant.

Resealing in Victoria is explained in resealing probate in Victoria, including the Court's list of jurisdictions whose grants may be resealed.

• Currency conversion and the timing of transfers between countries.
• Foreign taxes on death or on transfers, and how they interact with Australian tax.
• Australian tax consequences where a beneficiary or the deceased was a foreign resident.
• Certifying and translating documents, including death certificates.
• Paying debts in each jurisdiction and accounting for each administration.
• Different timeframes and procedures in each country.

Australian tax consequences for an estate with foreign residents or foreign assets can differ from a purely domestic estate. See deceased estate tax.

A cross-border estate is easier to manage when the executor starts with a clear inventory. For each asset, record where it is, what kind of asset it is, how it is held, its approximate value, which will or wills may deal with it, and which authority is likely to be needed to collect or transfer it.

Coordination sequence

1. 1Identify the principal grantUsually in the place where the deceased was domiciled or where most assets are, subject to advice.
2. 2Obtain certified or exemplified copiesExemplifications or sealed and certified copies of the grant are often needed for resealing or for foreign institutions.
3. 3Engage local advisersForeign law, tax and procedure should be confirmed by lawyers qualified in that place.
4. 4Deal with local debts and taxEach jurisdiction may have its own creditor, tax and reporting obligations before assets can be released.

Where a Victorian application depends on a foreign will or foreign law, the Court may require evidence of that law, usually by affidavit from a person qualified in it. Documents not in English generally need a translation, with evidence of the translator's competence, and foreign documents may need to be certified or authenticated. The Court's complex applications guidance should be checked for current requirements.

People with assets in more than one country sometimes make separate wills. A later will that revokes all earlier wills may accidentally revoke a foreign will, or the reverse. Before applying, the executor should obtain all wills, read their revocation clauses and consider whether each remains effective.

• Assuming a Victorian grant will be accepted overseas without checking.
• Assuming a foreign grant can be used in Victoria without resealing or a Victorian grant.
• Making a new will that unintentionally revokes a will made for another country.
• Relying on general statements about foreign law without qualified advice.
• Distributing Victorian assets without considering foreign claims or taxes.
• Overlooking foreign residency consequences for Australian tax.

We can advise on the Victorian side of a cross-border estate, obtain or reseal a Victorian grant, prepare the affidavit evidence required, and work with lawyers in other jurisdictions on the parts of the estate governed by their law. We do not advise on the law of other countries.

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