Clare Armitage
- Partner
- Private Client
Making your Wills speak the same language
When it comes to international estate planning, making your Wills speak the same language is about far more than translation. Whether it be the location of assets, personal backgrounds or the residence of family members, international connections pose traps for the unwary. This article summarises some of the points to consider when you have multiple Wills covering assets in different jurisdictions.
Formal validity
Will the Will be accepted as a validly executed document in the country in question?
Many assume that an English form Will with two witnesses is always enough to cover assets in England and Wales. Whilst it is often true, it is not always the case, particularly if the person making the Will is non-UK resident and a non-UK national. Solutions are available, but this is one point to watch out for.
Material validity
Will another country’s law give a person a claim to overturn the Will? Different countries can apply different rules in respect of the rights of family members who have been excluded from a Will.
Ownership of assets
Will your Will actually control how the assets are directed, or will that be covered by the way in which you own the assets? This is often easier to miss with assets outside the UK, where joint ownership arrangements may be in place, such as matrimonial property regimes.
Trusts
Trusts, which are relatively common in English Wills, are taxed harshly in many other countries. Consideration should be given to those inadvertent tax charges before including trusts in Wills with foreign elements.
Number of Wills
One Will per country in which you hold assets is often helpful in that it allows probate processes to run at the same time in different countries.
However, many other factors can play into this decision, such as protecting against the risk of one Will inadvertently covering the same ground as another which may in some circumstances accidentally revoke the earlier will.
Key terms
Are you clear on the legal meaning of important terms in the Will? For example, does the word “children” include step-children or adopted children? Does the term “spouse” include same-sex spouses? Which country’s law applies to these issues, if the testator is not originally from the UK?
A well-drafted Will can resolve these questions.
Tax
Will drafting can have tax implications.
For example, choosing English succession law to apply to all assets covered by your Will can bring additional assets within the scope of UK Inheritance Tax where some of the UK’s double tax treaties are in point.
How we can help
The above is not an exhaustive list and other factors should be considered. Taking specialist advice can help avoid these traps.
Where assets, family members, residence or nationality connect you to multiple countries, careful planning can help avoid unintended consequences, delays and unnecessary tax exposure. If you would like to discuss your estate planning arrangements, or review whether your existing Wills remain appropriate given your international connections, we would be pleased to help. Please contact Andrew MacIntyre, Clare Armitage or your usual Wedlake Bell adviser.
This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.
Meet the team:
Andrew McIntyre
- Senior Associate
- Private Client
