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Have you migrated to the land Down Under? Does that mean you need a new Will?


I migrated from South Africa to Australia and have been in Perth for a little over a year.  I am therefore aware of the stress and planning of migration and I also know that certain things do not make the priority list.  One being, finding out if the Will that you made elsewhere is enforceable in Western Australia, or if you need a new Will.

Many people know that they must have a Will that applies to their current situation.  However, some do not, and if you fall into this category, then I suggest you read my blog entitled ‘Oops I did it again’.

While it is possible for a Will to be made in accordance with the United Nations’ Convention Providing a Uniform Law on the Form of an International Will 1973, in my experience it is very rare to see a Will made this way.

Therefore, updating your Will is arguably the most important task after moving to another state or country. Each country (and, in Australia, each state) has its own inheritance and administration laws.

The international laws accepted by Australia dictate that movable assets, such as money in bank accounts and personal effects, will be distributed to your beneficiaries pursuant to the laws where you were living when you passed away.  This may appear to be simple,  but closing international bank accounts and completing complex forms will be a stressful (and frustrating) task for those left to do it for you.

Immovable property (such as a house) will be dealt with in terms of the laws of the country where the property is located.  The distribution of international property will not only be determined by the laws of that country, it may also be influenced by religion.  Interstate matters are less complicated.  For example, if you live in Western Australia and have a holiday home in Sydney, the laws and processes of New South Wales will then be applicable.

Inheritance laws are largely similar in all Australian states.  However, the requirements for the Application for Probate or Administration (such as the process for transferring a property) will be unique to each state.  Your Executor (in WA) may apply for a “reseal” of the Grant of Probate and will be able to deal with that property in NSW.

Not all countries (such as Italy) follow these laws, and the matter will be complicated once there is a dispute about which country’s laws will apply to the distribution of your assets.  We therefore recommend that you seek advice from a lawyer in the country where your property is situated. It would also be wise to consider and obtain advice about:

  1. having a Will in the country where your assets are situated;
  2. the process of applying for Probate in that country/state;
  3. who you may/will nominate as your Executor;
  4. the process of selling or transferring international/interstate property; and
  5. tax implications (such as death duties and inheritance taxes).

Please contact the experienced Team at Butlers to support you in reviewing your position as a recent arrival in Australia, to ensure that your wishes are implemented.


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Sunday, 26 June 2022