Brisbane’s Legal Lowdown: Estate planning for expats and migrants

Carla: It’s that time again for the week, Brisbane’s Legal Lowdown with Attwood Marshall Lawyers. Now we’ve just celebrated the Australia Day long weekend, and many people have officially celebrated becoming an Australian citizen after making the move here. You know, whether it’s for study or lifestyle or work opportunities, a change of pace, Australia continues to be a very popular destination.

But what’s often overlooked is what legally happens when someone moves here but still owns assets overseas, whether that’s property, investments or family inheritances.

Today, we’re joined once again by Attwood Marshall Lawyers Estate Litigation Senior Associate Duncan McDougall, to talk about moving to Australia and how that can impact your estate planning.

And before we get into this, congratulations on becoming an Australian citizen.

Duncan: Thank you very much. Yeah. G’day.

Carla: That’s exciting. Yeah, g’day, exactly.

Duncan: Yeah, now a long time coming, but yeah, just over 10 years now. I’m here permanently.

Carla: I love this story. You’ve come here from Canada. You came here as a student, and you fell in love with the country.

Duncan: Yeah, I needed a beach in my life. Come to defrost.

Carla: You’ve come to defrost, although ironically, I asked you, you’re obviously going to miss home because that’s where your family are and your friends, but you’re calling Australia home because you can see it for what it is, the opportunity and the lifestyle. But when you do miss them, you go off to Boondall and you go ice skating.

Duncan: Yeah, a good place to cool off as well.

Carla: It is, especially when the weather is like it currently is. But congratulations to you. I love that. I did speak about my family’s history on Australia Day. And for me, it marks the day that we were able to become Australian citizens as a nation. We were no longer British subjects in 1940 something, late 40s. And so a day like that for you, congratulations. It’s so special.

Duncan: Yeah, real special. I had some family visiting me as well, a little surprise visit. So it made it even more special. They got to experience the…

Carla: Did you convert any of them? Did they think, you know what, Duncan’s on to something?

Duncan: Well, they’re like, glad you came over here because it’s an excuse for a holiday.

Carla: Yeah, true. And escape the minus 30 that it is there in Canada.

Duncan: Absolutely.

Carla: All right. So I mean, this is obviously something that’s very close to home with you, having, you know, migrated here. When people move to Australia, what’s the trigger point, I guess, for them changing their estate if they’ve got assets and inheritance or whatever it might be in another country when they move here?

Duncan: Yeah, well, right off the top of the mind here, you’re coming into a new jurisdiction. So there’s going to be new rules, processes, the legality behind everything here. You may start accumulating new assets here, in which case there’s things to be aware of. Obviously, if you’ve already got some documents that particularly deal with assets in your home country, it’s important to revisit that when you’ve obviously moved to, say, Australia, start to accumulate assets, superannuation if you started to work here, things like that.

So, it’s important to keep that in mind and just know that by having a will maybe you’ve done in the past thinking and presuming it’s going to apply to your affairs here in Australia, is the wrong thing to think. It’s important to get that estate planning advice in order to make sure things are done by the book.

Carla: What about the converse of that? If you’ve got, say, for example, like my family have property overseas, does a will that they put in place here in Australia count for anything in another country?

Duncan: Again, it’s going to come down to the jurisdiction itself. So generally, these common law countries like Canada, UK, New Zealand will somewhat speak to one another. But there still may be some processes there, whether it’s another, what they call resealing of a probate. So once you’ve got that court stamp of approval saying that’s a valid will and that’s an appropriate executor, another court in another jurisdiction may still want something extra to say, well, it is valid. But not necessarily. Generally speaking, when you’ve got assets in two different jurisdictions, generally we recommend concurrent wills. So that’s a will in each country that particularly deals with those assets and affairs in that particular country.

It silos everything to deal with that. And to make sure that it’s not unintentionally revoking a previous will as well. So you may come to Australia, you knock up a will, you might do with these at-home wills, which is very risky, unintentionally revoking a will that you may have had in the past. So it’s important to be aware of the jurisdiction that you’re dealing with and the documents that you may already have in place.

Carla: Yeah, and that’s the question is, you know, if is one Australian will then enough if you’ve got property or money or whatever in another country, it’s not.

Duncan: It could very well be, and again, it’s going to depend on the extent of those assets and where they are. There could be one Australian will that attempts to deal with the world at large, but it’s going to come down to those assets and the tax advice and everything that goes along with it as well. So generally, even if it does, it appears that it could apply to everything, it’s appropriate to get advice even if you’re back to your home country, if you still have assets there.

Carla: And you’re still tied within that country.

Duncan: Exactly.

Carla: And I guess then, you know, what problems then can arise for families who have had a loved one pass that have… assets in another country that maybe they didn’t know of or has just come to light that wasn’t in a will or anything, that’s going to be a huge headache?

Duncan: Huge headache. And just whilst my family came over here to visit myself, it was the topic of conversation. I’m now…

Carla: You brought your work home with you.

Duncan: I know, right? Well, I’m no longer a… I’m a non-resident for tax purposes in Canada now.

Carla: That’s right.

Duncan: And similarly with people who may go overseas to do some work, no longer a resident there. All of a sudden, if you want to benefit beneficiaries and they’re no longer considered or they’re considered non-residents for tax purposes, there could be certain extra tax obligations to your estate in that instance.

Similarly, if you’re appointing executors under your will and you’ve got a foreign trustee operating your estate, and just the practicality of it as well, provided they’re overseas, needing to be on the ground here in Australia, dealing with your affairs after you pass away creates more headache than what’s worth. Generally, make sure you’ve got somewhat of a connection or some people here appointed, just making sure you’re aware of all these things. It may be unavoidable, the tax, but there’s certain things that you can do to mitigate it.

Carla: So how did that conversation come up with your loved ones when they came to visit you? They’re here to celebrate you becoming an Australian citizen. They’re like, come on, Duncan, you just got some practical things we need to do.

Duncan: Well, they’re the opinion. Well, you’re a lawyer here in Australia. You must know, we can appoint you an executor under our will.

Carla: Yeah, right.

Duncan: My first question back to them, well, have you gotten the appropriate advice over there to make sure it doesn’t affect any tax issues with me being a foreign executor?

Carla: Yeah. Gosh, so now that you’ve sent them back to do some more homework over there.

Duncan: That’s exactly what I did.

Carla: Oh, wowzer. Okay, so can foreign inheritance laws override, I guess, what someone wants in their Australian will?

Duncan: Absolutely. It depends again on the jurisdiction that you’re speaking of, but generally any civil countries, it’s more down a legislative book of rules, where generally spouses and children automatically benefit. So they kind of disregard that testamentary freedom that somebody can actually put in a will to make sure it goes to what they want.

Whereas a lot of Asian and Middle East and those sorts of countries, even parts of Europe, have a specific designation in terms of if you were to pass away and you’ve got dependents, these are who are to benefit regardless of a will being in place. They think a lot of in the, obviously in so-called Western world, we know what a will is, but it’s not necessarily in every jurisdiction.

Carla: No, I know that in Italy for some time, my dad is Italian, that it’s like a birthright thing, that like only the wife and the children of a first marriage, being a strictly Catholic country, dad’s onto his third marriage, but he’s more like Henry VIII. But that only the first marriage, so the children and the spouse of the first marriage are the ones that count. But I don’t know whether it’s different now, but certainly was the case for a little while, which is quite archaic.

Duncan: Well, it’s interesting you bring that up generally. I’ve done some estate planning for clients who are originally from Italy. A lot of presumptions, you know, this is the way it is. We’re presuming that the same applies here in Australia when that’s just not the case. And you try to, and if that’s all part of the advice that that’s appropriate to receive to make sure that they understand where things are going to end up and how it’s going to be administered.

Carla: Interesting. All right. I asked at the start before we got on air, what brought you from Canada to Australia? And it was studying. You came here to study law. Interestingly though, I didn’t realise, and it’s in talking with this, different jurisdictions, different countries have different ways of doing things, but that you came here to study law because it has a similar… jurisdiction, is that right?

Duncan: Yeah, it’s based off of a commonwealth, which comes from the Brits. And so it’s all, Canada has a very similar history to Australia in that regard, similar with New Zealand and those common law countries. So yeah, there’s a little, it’s an easier pathway for others to practice across multiple jurisdictions. Or even if I were to study here, obviously I’d have to write some exams and extra coursework probably if I were to practice back in Canada and be admitted to practice in Canada. But like I said, fell in love with the beaches and the lifestyle and the way of life here.

Carla: I mean, you don’t have to tell us. We already know.

Duncan: Exactly.

Carla: But I just find it interesting that, you know, that they have, and it makes sense when you say it out loud. I just never thought of it in that case that, you know, you could do that. And then it’s interesting that we talk about, estate planning when you’ve got, families that are abroad still or that you’ve got assets or whatever you’ve come from abroad, that, it’s not one universal law. There’s not, you know, we all follow different rules and protocols.

Duncan: Yeah, you assume there’s one place who operates like the other, which is really not the case. And there’s just… too many factors that go into it. And it’s really going to be more of a headache to your loved ones after you pass away without properly considering the ramifications of having something that you think is going to apply across multiple jurisdictions.

Carla: It’s so interesting. All right. Finally, Duncan, then what’s your key message, I guess, for migrants or expats or maybe even returning Aussies? Like I’ve got a sister who’s moving back from Holland. She’s been in Europe for the better part of 15, 16 years. She’s always called Australia home. She wants to come back to Australia. What about things, the assets from overseas that fit into their estate plan now? How do they go about doing that? What’s a key message?

Duncan: Yeah, a key message is go see an estate planning lawyer, somebody who practices in the area, understands what’s there. Get an understanding of what you currently have in place as well. See what applies when it was done. I mean, if you’re three to five years ago, and you’ve moved countries, you’ve maybe worked there for a while, you maybe accumulated some, for example, coming here to Australia, some superannuation, et cetera. Even myself coming here, I’ve now bought a property. That all factors into it as well. Even myself, I’m going to have to review my estate plan. Just all these little things that it’s appropriate to consider. And by getting that advice from the outset, certain clauses can be inserted in your documents to make sure the T’s are crossed and the I’s are dotted.

Carla: Very good. All right. And of course, if anyone would like to get any information from you, can direct it here, or you can, of course, go to Attwood Marshall Lawyers. Duncan, congratulations, mate. Good on ya, cobber.

Duncan: Thank you.

Carla: Well done. Congratulations on becoming an Australian citizen, and I’m sure we’ll see you sometime soon for another Legal Lowdown.

Duncan: Absolutely. Thanks for having me.