Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Top 10 considerations when drafting a Will that includes foreign beneficiaries


Attwood Marshall Lawyers Wills and Estates Senior Associate Larisa Kapur recently joined Robyn Hyland on Radio 4CRB for ‘Law Talks’ to delve into a crucial yet often overlooked topic: drafting a Will that includes foreign beneficiaries. When your loved ones live overseas, your estate planning requires special considerations. Here, we will explore the key factors and potential challenges you must be aware of to make informed decisions and protect your legacy for those living abroad.

As more people migrate to Australia, particularly to Queensland, and with many Australians moving overseas now that the pandemic is mostly behind us, it is increasingly common for Wills to include beneficiaries living abroad. Understanding how these international elements can impact your estate planning is crucial for ensuring your wishes are fulfilled and your family is protected.

The top 10 issues to consider when including foreign beneficiaries in your Will are:

  1. Jurisdictional Issues
  2. Tax Implications
  3. Currency and Exchange Rates
  4. Communication and Documentation
  5. Executor’s Role
  6. Asset Location
  7. Residency and Domicile
  8. Double Taxation Treaties
  9. Updating your Will
  10. Legal Advice

Jurisdictional Issues

Different countries have different laws regarding inheritance and the recognition of foreign Wills. It is essential to ensure that your Will complies with Australian law and the laws of the country where your beneficiaries reside.  

If you have assets in multiple countries, it may be necessary to seek legal advice from an estate planning lawyer in each country. In some cases, you might need to create a separate Will for each jurisdiction to address the distribution of those assets properly.

An experienced estate planning lawyer can investigate the relevant countries involved in your Will and provide tailored advice on the necessary considerations. They can also suggest strategies to ensure your wishes are upheld while complying with all applicable laws.

Tax Implications

Beneficiaries living overseas may be subject to different tax laws. For example, some countries may impose an inheritance tax on assets received from an estate. This is why it’s crucial to seek advice on the tax implications in Australia and the beneficiary’s country of residence when gifting certain assets. Consulting with a tax professional can help ensure that all potential tax liabilities are considered and addressed appropriately, helping to protect your beneficiaries from unexpected tax burdens.

Currency and Exchange Rates

If the Will involves the distribution of monetary assets, it is important to consider the impact of currency exchange rates. This is particularly important if you want to leave assets of equal value to multiple beneficiaries. If you do not factor in exchange rates, the value of the inheritance may be significantly less than you expected.

It can be beneficial to specify the currency in which the assets should be distributed to ensure clarity and fairness.

Communication and Documentation

Ensuring your Will is clear and unambiguous is vital, particularly if it needs to be interpreted within a different legal system. It must be executed correctly to be considered legally binding.

If your beneficiaries speak a language other than English, providing translations of the Will can help prevent any misinterpretation. Clear communication and accurate documentation ensure your wishes are understood and followed as intended.

Executor’s Role

Appointing an executor familiar with international estate matters can be beneficial if you draft a Will that includes foreign beneficiaries. The executor may need to deal with foreign legal systems, financial institutions, and tax authorities, which can differ significantly from what we are familiar with in Australia.

It is also essential to consider the location of you’re the person you appoint as executor.

If your chosen executor is considered a non-resident of Australia for tax purposes, then this means that the estate will be subject to the same rules and tax rates as a foreign resident.

It can also be incredibly impractical if your executor lives overseas. It may be difficult and costly for the executor to travel if needed to complete their duties; there is also the issue of time differences to consider when the executor is trying to handle estate matters. Logistical issues can also arise if the executor is unfamiliar with Australia’s systems, particularly dealing with banks and government organisations, just to name a few.

It is highly recommended that you choose an executor who is local to you and your estate, so they can easily manage the necessary tasks without additional hurdles. Acting as an executor is an arduous task without unnecessary added complications.

Read more: Foreign executors – should you appoint someone to be executor in your Will if they live overseas?

Asset Location

A Will-maker must consider where their assets are located. If assets are held in a foreign country, complying with that country’s probate process may be necessary. This can add complexity and delay to the administration of the estate, so it’s a factor to consider and plan for adequately.

Residency and Domicile

The residency and domicile of the testator (the person making the Will) can affect the distribution of the estate. Domicile is the place where the deceased person regarded as their permanent home.

Different rules may apply depending on whether the testator is considered a resident of Australia or another country.

So, this is something to discuss with your estate planning lawyer when drafting your Will.

Double Taxation Treaties

Some countries have double taxation treaties with Australia, which can affect the tax treatment of inheritances. Understanding how these treaties may impact the beneficiaries named in the Will is important.

A double tax treaty is an agreement between two or more countries that reduces tax that international residents must pay so they do not have to pay tax twice on the same income or asset.

Updating your Will

Our lives are constantly changing. Whether it is changing family dynamics, losing a loved one, or buying and selling assets, things are always evolving. This is why a Will cannot simply be set and forgotten.

You need to regularly review and update your Will to reflect any changes in your circumstances. This may include changes in the law, your assets, or changes to your beneficiaries’ situations. For instance, you may have drafted a Will to accommodate where a beneficiary is lives, but their living circumstances change, which can impact your estate plan.

Legal Advice

Seeking legal advice from a solicitor who is experienced in estate planning and understands the complexities involved when appointing foreign beneficiaries in your Will can help you navigate the intricacies of different legal systems and ensure that the Will is valid and enforceable in all relevant jurisdictions.

It’s all about ensuring your wishes are upheld. Don’t try to go it alone. When you have the right professional to help you, the process is straightforward, and you can have confidence that all your affairs are handled the way you want them to be, protecting your assets and your family.

Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes

Attwood Marshall Lawyers has one of the largest and most experienced Wills and Estates departments in Australia. Our dedicated teams practice exclusively in estate planning, estate administration, and estate litigation.

Our team can provide expert advice during the estate planning process to tackle any issues head-on if a Will-maker intends to leave assets to foreign beneficiaries or appoint a foreign executor. 

To discuss our Wills and Estates services, please contact our Department Manager Donna Tolley on direct line 07 5506 8241, email or book an appointment instantly using our online booking app.

Share this article

Larisa Kapur

Senior Associate
Wills & Estates

Contact the author

The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

Brisbane Employment Law

Employment Law Sydney

Gold Coast Employment Law

Defamation Law

Employment Law

Download a Brochure

Please enter your details below and
a link will be emailed to you
Download Form

Compensation Law

Select your state