Global Connectivity
In 2025, worldwide connectivity is ever-present. It is common for Australians to live overseas, and to own assets overseas, including shares, or real property such as the home they live in or a holiday home. It is also normal for beneficiaries to live overseas or be foreign residents.
This raises questions as to how to deal with these assets from a succession law perspective. It is important for legal advisers to take a collaborative approach and work with an individual’s tax advisers, financial advisers, and foreign legal representatives to avoid potential conflict and costs.
Potential Issues
You need to consider potential issues that individuals may face in cross-border estate planning. Some of these issues include the following:
- Where does an individual hold assets? For example, are the assets located in Australia and/or overseas?
- What type of assets does the individual own? For example, are they movable or immovable assets?
- Where was the individual domiciled?
- What laws govern the individual’s assets in Australia and overseas?
- Should the individual make a global will or multiple wills in the different jurisdictions?
- Who should an individual appoint to administer their estate in each jurisdiction?
- Are there any tax implications?
These issues can add complexity to estate planning for clients.
Movable and Immovable Assets
Different types of assets are treated differently depending on the jurisdiction. This can result in a conflict and a question as to which law applies.
There are movable and immovable assets:
- Movable assets include cash and shares;
- Immovable assets include real estate.
The location of an individual’s assets can assist with determining where to apply for a grant of Probate or Letters of Administration.
In New South Wales, movable assets are governed by an individual’s domicile. Whereas, immovable assets are governed by the law where the assets are located.
For example, if a person died without a will, was domiciled in New South Wales, owned real property in France, shares in America, and personal property in New South Wales, then:
- French laws apply to the real property in France, and
- New South Wales intestacy laws apply to the shares and personal property.
However, other jurisdictions may not recognise this position. Therefore, advice needs to be obtained as to which set of laws would apply.
Forced Heirship
In Australia, we do not have an issue of forced heirship, where you must leave a percentage of your assets to your family. Other jurisdictions do have that concept. Therefore, this may impact the laws which apply.
What is Domicile?
In order to determine which laws apply, you need to establish where an individual was domiciled.
In Australia, there are three types of domicile:
- Domicile of Origin;
- Domicile of Choice; and
- Domicile of Dependency.
Domicile of Origin is based on where you were born.
Domicile of Choice is acquired and is based upon where you choose to live permanently or habitually. For example, if you move to the United Kingdom, with the intention of permanently staying there, you will acquire a domicile of choice in the United Kingdom.
Domicile of Dependency is determined by another person. For example, if you are under 18 years old, you would normally acquire the domicile of your parent. It is an archaic concept as it usually follows your father’s domicile, if your parents were married at the time of your birth.
Other jurisdictions do not have these concepts and may look at other factors to determine domicile, such as nationality, or long-term residence. For example, in Europe, nationality is used to determine domicile.
What are some tips for dealing with cross-border inheritance planning?
Once you determine where a person was domiciled and where the individual’s assets are located, you need to consider whether a worldwide will is necessary. Some of the considerations are as follows:
- Whether the will made in a foreign jurisdiction is recognised and enforceable in the local jurisdiction. For example, would you be able to get a reseal of the foreign grant in New South Wales? Generally, you can if the grant was obtained in a Commonwealth country;
- Whether the foreign jurisdiction has similar legal concepts to the local jurisdiction, for example, regarding joint tenancies, or de-facto relationships;
- Would a foreign will be advantageous as different languages are spoken in the foreign and local jurisdiction, and translation may be an issue;
- Are there tax advantages of having multiple wills;
- The cost of having multiple wills;
- Revocation clauses in wills – for example, if an individual has made multiple wills, incorrect clauses in their foreign will may accidentally revoke their Australian will.
Ultimately, the decision to make a worldwide will, or multiple wills in different jurisdictions, depends on an individual’s priorities. If you wish to discuss cross-border estate planning further, please call our experienced team on (02) 9101 7000.
By Maree Harris – Special Counsel
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