Visa holders: have you sorted out your affairs?
21 Dec 2020
- Wills & Estates
What happens when you move to another country, but still have some key items left at your place of origin?
People who migrate to Australia permanently will often retain assets in their country of origin. For the purposes of estate planning, this can give rise to a number of complexities. When a person migrates to Australia and subsequently passes away, it can often be difficult for their families to undertake a full inventory of the overseas assets of the estate, and to obtain the appropriate grant of probate (which is the Court’s ‘seal of approval’ required for the executors to actually distribute the estate). Some of the issues that can arise for executors include lack of familiarity with the foreign legal system, language barriers, and – most importantly – absence of knowledge that the deceased even had any assets located overseas.
As a general rule, a will made in Australia will seldom be recognized by an overseas jurisdiction, even where it specifically deals with assets in that jurisdiction. Similarly, a foreign will is unlikely to be recognized by an Australian court, even where it addresses itself to assets in Australia.
Moreover, some countries make it difficult for non-citizens or even dual citizens to finalize a deceased’s affairs, even when specifically designated as an executor under the will. Nepal, for example, only permits citizens to apply for probate.
Where a person has assets both in Australia and overseas, it is best practice to prepare separate wills in each jurisdiction, specifically dealing with the assets in that country. It is advisable to let your family (and any other executors of your estate) know at the time that you are preparing multiple wills in different jurisdictions.
A grant of probate issued by a court overseas can be recognized by an Australian court upon application by the executor to whom the original probate was granted (or a person authorized by the executor under a power of attorney). This is known as ‘re-sealing’ the foreign grant of probate. As with many aspects of estate law however, what is legally possible may not be necessarily financially advisable. Once an estate becomes involved with overseas investigations and applications to foreign courts, it can quickly erode the value of that estate, even a sizeable one.
Therefore, careful planning for visa holders (and even those who have migrated and subsequently gained Australian citizenship) is needed to provide estate peace of mind. Sometimes, as a practical matter, it may be easiest for the executors and the beneficiaries for the testator to consolidate all their assets in one country.