With a significant and ever-growing percentage of the Australian population having been born overseas, many Australian citizens and permanent residents will need to contemplate how their Will deals with their international and overseas assets, both those they currently hold and those they stand to inherit from parents or other family member who do not reside in Australia. 

If you hold or stand to inherit international assets and your Will is not drafted with the appropriate consideration, these assets may not be distributed according to your wishes and can otherwise cause an increase in the time and expense to administer your overseas estate.

Classification of International and overseas assets 

Overseas assets are generally classified as either “moveable” or “non-moveable” assets. Movable assets include assets like shares, funds in bank accounts, jewellery, artwork, and vehicles. Non-moveable assets are generally attached to land and primarily include real property such as houses, apartments and commercial or industrial buildings. 

Moveable and non-moveable assets are generally treated differently in that moveable assets can often be dealt with according to the laws of the jurisdiction where the Will was prepared or where the Will-maker (known as the “Testator”) permanently resided for a period of at least six (6) months prior to their death (referred to as where the Testator was “domiciled”). On the other hand, non-moveable assets are generally governed by the succession laws of the jurisdiction where the non-moveable asset is located.  

Non-moveable assets normally do not require a reseal of an Australian Grant of Probate in the overseas jurisdiction and your executor should only need to provide a certified copy of the sealed Australian Grant of Probate to have the assets released. 

Moveable assets will generally require a reseal of Probate of the Australian Grant of Probate in the jurisdiction where the assets are located. 

Possible issues with international and overseas assets 

It should be noted that some countries do not accept reciprocal recognition of foreign Wills. For example, it would be prudent for a Testator who owns property in China to seek advice from a Chinese lawyer on how those assets would be distributed according to Chinese law, and to draft their Australian Will to impose an obligation on their executor to engage a Chinese lawyer to administer their Chinese estate. It may also be required that a separate Will be prepared that deals with only the assets in the country where the assets are located.  

You should also consider that some countries have laws that view succession as the right of the heir and not the choice of the Testator. There may also be laws based on religious or cultural considerations that will prevent your assets in that country from being distributed according to the terms of your Australian Will. 

This is why we advise that if you do hold international assets, it is always a good idea to seek legal advice from a qualified advisor in the relevant jurisdiction to avoid any unwanted surprises with how your overseas estate will be administered. 

Effect of the UNIDROIT Convention on International and Overseas Assets

Although the above touches on general estate distribution principles applied to overseas assets, there is no guarantee that these assets will be distributed in accordance with Australian law if you only have an Australian Will or there is no reciprocal recognition. While this remains the case in most countries, this changed in 2015 for Australian Testators in respect of certain nations when Australia became a signatory to the UNIDROIT Convention. 

As of March 2024, there are 20 UNIDROIT signatory nations in respect of estate administration; being: 

– Australia – Belgium – Bosnia-Herzegovina – Canada

– Croatia – Cyprus – Ecuador – France 

– Holy See – Iran – Italy – Laos

– Libya – Niger – Portugal – Russian Federation 

– Sierra Leone – Slovenia – United Kingdom – United States 

Within the context of estate administration, the purpose of the UNIDROIT Convention is to provide a standard format international Will that allows both moveable and non-moveable overseas assets to be administered in accordance with the laws of the country where the Testator was domiciled, so long as the country that holds the assets is also a signatory to the convention. For example, a Testator with who owned an apartment in Canada can have that real property administered in accordance with Australian law, provided that their Australian Will is drafted in accordance with the requirements of UNIDROIT. 

Having your Will drafted pursuant to the UNIDROIT Convention can significantly reduce the inconvenience and save both time and costs of administering your overseas estate, ensuring more of your estate goes to your beneficiaries rather than legal fees.  

If you have or stand to inherit international assets, please call Stone Group Lawyers on (07) 5635 0180 and one of our experienced Wills and Estates team members can assist you with your overseas estate requirements.