What happens to my assets overseas when I pass on?
A will can be one of the most complex and difficult documents to write, more so when assets or beneficiaries are located across several jurisdictions. It is not uncommon for testators to include their foreign assets in a will made in Singapore since “assets” include property situated locally and overseas. Even if you do not have any assets outside of Singapore at the time of drafting your will, you may choose to state prospectively, how your overseas assets are to be disposed of in the event you acquire such assets by the time of your death.
However, it is important to note that including these foreign assets in your will does not necessarily ensure recognition of that will in the foreign jurisdictions where the property is situated – for purposes of dealing with property and/or for succession. There are several approaches you can take in order to prevent your will from running the risk of being invalidated overseas.
1. Including the overseas assets in a will made in Singapore
It is possible to include overseas property in a will which is written in Singapore. When a will is written and probated in Singapore, Singapore law applies to the administration of the estate. The usual laws relating to statutory obligations to spouses and dependants apply. However as stated above, the eventual recognition and execution of the will in the foreign jurisdiction is subject to the foreign court’s discretion and it there are conflicting domestic law in the respective jurisdictions.
Which jurisdictions would recognise a will made in Singapore?
There is no simple and straightforward answer as to whether a foreign jurisdiction would recognise and give effect to a will made in Singapore. In general, most common law jurisdictions would recognise a valid will made in Singapore which includes assets in their own jurisdiction. However, this is subject to several factors including:
- Whether the jurisdiction accepts the formal validity of the will
- Whether the jurisdiction accepts the substantive terms of the will
- A jurisdiction may accept that a will is formally valid, but may decline to acknowledge the substantive validity of its terms to the extent that they conflict with forced heirship provisions or other domestic laws/regulations. Similarly, some jurisdictions apply different rules to movable and immovable assets.
Certain jurisdictions may accept that a will made in Singapore is both formally and substantially valid, but the the procedure involved in recognising such a will may be so complicated that other approaches are recommended instead.
On the other hand, countries that do not follow the common law, such as the most of continental Europe, may have their own laws which may override the provisions in your will.
2. Creating a will in accordance with the law in the foreign jurisdiction
The other approach if you have property overseas, is to make a will in each jurisdiction where you own property. Then, each property would devolve in accordance with the local law where the will is made. However, this gives rise to administrative problems as each will would have to be probated in the respective jurisdictions.
In relation to immoveable property (houses or land), it is the lex situs (the law of the country where the property is located) which governs succession under the will. For example, if you own an apartment in Spain, Spanish law will govern the issue of whether that property will pass to the intended beneficiary. As a result, it is advisable to get legal advice on the local law in relation to succession in the jurisdiction where your immoveable property is located and how it would impact the applicability of your will.
3. Creating an international will
To simplify succession laws around the world, the Convention Providing a Uniform Law on the Form of an International Will was introduced in 1973. The convention seeks to harmonise and simplify the required proof of formalities for wills that have international characteristics. It does this by setting up a uniform law introducing a new form of will, known as an ‘international will’, which is recognised as a valid form in all the countries that are party to the convention.
Accordingly, an international will is recognised in the respective countries if:
- It meets certain standards
- It has been “certified” as an international will; and
- It is registered with the relevant authorities
Once a will is registered as an international will, it will be recognised in all other jurisdictions that have:
- signed the Convention on International Wills; and/or
- included that agreement in their own laws
As of 21 January 2015, the following countries have acceded to the convention:
- Sierra Leone
- The United Kingdom
- The United States of America. (Pertinently, estate succession laws are the domain of the local states, in the USA. Hence, individual states also need to enact the Convention. At last count, 23 states and the District of Columbia have adopted the international will. An updated list of the countries that have acceded to the convention is available here.)
Limitations of an international will
While the language of an International Will convention sets out what is required to formalise a will, it does not specify any content of the document. This is made more complicated by the fact that different jurisdictions have their own laws as to what can and cannot be included or done in a will. For instance, a contentious issue is whether a spouse or dependant can be disinherited.
Further, as reflected in the section above, while international wills seem like a plausible and easy solution to one’s distribution of assets after he passes, it is still a relatively fresh idea that many countries have not warmed up to. Chiefly, Singapore herself, has yet to embrace the idea of an international will.
Consider this scenario:
John, a British citizen, is residing in Singapore. He is wealthy and has assets in Singapore, France and Thailand. If he makes his will in the UK, what happens?
First, probate (to establish the validity of a will) will be obtained in all countries that John has assets in. Therefore, probate has to take place in Singapore, France and Thailand. Moreover, if John does not have a valid will, the entire process of probate and the eventual distribution of the estate will be delayed.
With an international will, as long as probate is obtained in the country the will is made and the will is deemed to be valid, the will takes effect in the countries the deceased has assets in. This is provided that the countries are privy to the Convention on International Wills.
Even if having foreign assets complicates matters in terms of making a will, it is a necessary step to take to ensure you have peace of mind and the assurance that all your properties are accounted for and distributed as you intended, upon your death. It is understandable if all this information sounds daunting. A professional wills lawyer can explain the various procedures and tailor specific advise to your needs.
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