In the modern age of accessible travel, vibrant open economies and bountiful opportunities, it’s no wonder that many Australians are packing their bags in search of the work/life balance they always dreamed of abroad. Why not, when you can live in London and pop over to Sicily on the weekend? Or base yourself in Hong Kong and lose yourself in south-east Asia in your down time?
Many Australians take these working opportunities abroad and leave behind things like bank accounts, shares, superannuation and life insurance and even real property, intending to come back and sort it out when they move back home, or to get to it eventually – maybe on the Christmas visit back home. Sound familiar? These valuable assets are often left behind in Australia without a Will or any kind of directive about how they should be treated if their owner falls ill or worse, dies.
A plan to sort it out eventually is all well and good while you are still fit and healthy. You might even have been organised enough to have a local solicitor draw up your Will and equivalent power of attorney and guardianship documents for the country you are living in. Bonus points to you if that’s the case!
However, if things take a turn for the worse, you could regret not having put in place Australian estate planning documents while you could have.
Below we run through the possible scenarios that you may relate to and give you some reasons why you should get some Australian estate planning documents in place, pronto.
I’ve already got a Will in the country I’ve settled in. Isn’t that enough?
We commend you on being proactive about managing your personal affairs in the country you now reside in. However, unfortunately, often this isn’t enough for Australian purposes.
The Will you have had drawn up in the country you reside in will (hopefully) be sufficient for the purposes of that jurisdiction.
However, a Will drawn up overseas will not necessarily have the same effect on your Australian assets.
First, your Will may intentionally only deal with your assets in the relevant jurisdiction it has been prepared for. This will mean that all other assets around the world are expressly excluded from being captured by that Will.
Secondly, what constitutes a Will in one jurisdiction may be very different to what constitutes a Will for Australian purposes. Just as there are differences in the law of different states of Australia in terms of succession, there are even bigger differences between international jurisdictions.
Thirdly, you may have the same issues in reverse – if you have a Will in Australia, but no Will for the assets you have left abroad. Your legal personal representative will no doubt face the same issues trying to prove that an Australian Will is valid for the purposes of the international jurisdiction you have left assets in.
Getting a Grant of Probate or Letters of Administration will not be a walk in the park
If you happen to die overseas and don’t have a valid Will for your Australian assets, you could leave your loved ones in Australia in a sticky situation.
Different states and territories in Australia have their own Probate Registry, usually housed in the Supreme Court of that state or territory. The Probate Registry is responsible for considering applications for Grants of Probate (where the deceased has left a Will) and Grants of Letters of Administration (where the deceased has not left a Will or has left a defective Will) and authorising applicants to deal with a deceased estate by issuing the relevant Grant. Want to know more about the probate process in Australia? See more here. (https://andreyev.com.au/2015/01/08/do-i-need-to-apply-for-probate/).
If you have left a Will overseas, your executors may experience difficulty in obtaining a Grant of Probate in Australia. This is because the Will may not be valid for the purposes of Australian law (as above). This will mean your executors have to make another kind of application to the Court (most likely an application for a Grant of Letters of Administration).
Even in regular circumstances where someone has died in Australia and has not left a Will, getting a Grant of Letters of Administration can require your loved ones to jump through more hoops than if they were applying for a Grant of Probate. This is because without a Will, the Court has to be satisfied that the applicant for the Grant of Letters of Administration is the appropriate person to be applying, and that they will do everything they can to find the deceased person’s potential beneficiaries and divide the estate amongst those people in accordance with the law.
Throw an overseas death certificate and some foreign paperwork into the mix and your estate could be in a real mess.
In one matter we worked on, the deceased had spent some time in Australia and invested a healthy amount of money with an Australian bank. He went back to Europe and died there – failing to leave a Will behind in either country. His son was able to obtain a grant in the deceased’s home country to administer his estate there. However, the trouble came when the deceased’s son wanted to deal with the deceased’s assets in Australia. Some novel issues we encountered in that matter were:
- the foreign grant could not be resealed (formally recognised) in Australia;
- various foreign documents needed to be formally translated and the originals sent to us for the purposes of making the application;
- the Probate Registry required evidence as to the operation of inheritance laws in the deceased’s home country and evidence that the deceased’s son was validly authorised to administer the deceased’s estate in the country where the deceased died. This required locating a solicitor admitted in that jurisdiction to affirm an affidavit as to those issues; and
- the draft probate forms needed to be affirmed by the deceased’s son before an eligible witness. This meant a trip to a neighbouring country and scheduling an appointment with the Australian Embassy. The forms needed to be executed in a particular manner and any errors would have meant the application was requisitioned (rejected).
We got there in the end – but not without a lot of extra work for us and the deceased’s son. The majority of the work we had to do for that particular estate could have been avoided if the deceased had a valid Will in Australia.
The intestacy rules could leave a sting
As we mentioned above, failing to leave behind a Will does not mean that your loved ones escape formal requirements in Australia that authorise a person to deal with a deceased estate. Your estate may require a grant of Letters of Administration. This is a more onerous application than an application for a Grant of Probate, and it requires that all potential beneficiaries of the estate are accounted for.
If you unexpectedly die without a Will, your Australian assets will be at the mercy of the ‘intestacy rules’. These rules dictate the statutory division of your assets, and will probably mean that your Australian assets are divided up in a manner that you did not intend.
If you have moved on to a second relationship and left behind a former spouse and children from an earlier relationship, all of these people may now be captured in the intestacy rules. This could lead to an awkward family reunion at the very least.
In one matter we worked on, we had to arrange for a private investigator to track down the deceased’s estranged father’s second wife to confirm whether they had any children together – as any half-siblings of the deceased would have been beneficiaries of the deceased’s estate. This was a requirement of the Court prior to obtaining the Grant of Letters, so there was no getting around it. Yes, we did track her down in the end.
In short, you shouldn’t leave things up to chance. Things change and life moves quickly – you should take this opportunity now to get your Will drawn up.
Enjoy the flexibility of authorising others to manage your affairs
There are benefits to having valid Australian estate planning documents while you are alive as well. One thing you might like to consider is appointing somebody under a Power of Attorney to manage your legal and financial affairs in Australia. This can be as simple as lodging your Australian tax returns or liaising with banks, all the way to buying or selling property on your behalf. This is even more useful if you run a business in Australia or have a self-managed superannuation fund. Read more about succession planning for your SMSF while you are overseas here (https://andreyev.com.au/2020/06/03/enduring-attorney-smsf/).
Having somebody appointed to take care of these matters for you can be very useful, and save you a lot of time and stress in trying to organise things urgently.
Wow, I better get my skates on. Is it easy to prepare Australian estate planning documents remotely?
Absolutely! If COVID-19 has taught us anything, it’s that working remotely is really not that big a deal at all. It’s a service that we’ve always offered and have had the recent opportunity to perfect (how’s that for a silver lining?).
We are happy to work around your schedule and preferences for putting together a estate planning documents for Australian purposes. We can facilitate phone calls, video calls or even correspondence by email to obtain your instructions.