MT Legal Services
MT Legal Services
Will Writing

Expat Wills – What You Need To Know

27 March 2020 by Mark Tucker
These days it is common for people to have assets (such as property) in multiple countries. More than ever people live and work around the world and continue to own a house in their home country.

An estimated 5.5 million British people live overseas. According to various data, over 1.5m people reside down under (Australia and New Zealand), over 760,000 in Spain, 1.2 million in North America, 240,000 in Dubai, and 212,000 in South Africa.

It is recommended that you prepare a Will for each country in which you hold assets. What many British migrants fail to realise is that other countries’ laws often differ substantially from that of England and Wales.

Can I include foreign assets in my UK Will?

For succession purposes, where a matter involves more than one legal system it is necessary to apply the conflict of laws (also referred to as private international law (PIL)) rules that determine which law of succession applies. Where the PIL rules of one jurisdiction conflict with the PIL rules of another jurisdiction, it is necessary to determine which jurisdiction can decide the matter.

Put simply, your assets in each country will need to go through the probate system in the country in which your asset(s) is/are located. To do this, your assets must be described in a Last Will and Testament that is written under the laws of that country.

Your nationality, residency, citizenship and location of your beneficiaries is not as relevant as the location of your assets.

As you may imagine, different countries have different probate, tax and inheritance laws. Your Executor must be granted to act as the estate administrator in each country to deal with the assets in that country.

Can I just get a DIY Will kit for the country where my other property is?

Blank form DIY Will kits are not the best, with many limitations. They are not written specific to country laws and not updated to reflect changes in the law. For example, there was a significant change to EU law on foreign held assets in 2015 (Brussels IV). To our knowledge, no blank form Will kit has incorporated these law changes. Is it really worth the risk?

Fortunately, since 17th August 2015, the rules surrounding dying intestate within the European Union have been simplified. If someone dies in an EU Member State without a Will, the rules of intestacy will be the rules of the country in which they were habitually resident as at the date of their death.

Once domicile (or habitual residence is established), the intestacy laws of that country will apply. The country in which a person is domiciled refers to the nation with which they have the closest ties. A person’s domicile of origin is typically their father’s domicile as at their date of birth.

As you may imagine, different countries have different probate, tax and inheritance laws. Your Executor must be granted to act as the estate administrator in each country to deal with the assets in that country.

What Is 'Mental Capacity' & How Does It Affect A LPA?27 March 2020What Is 'Mental Capacity' & How Does It Affect A LPA?