How to Give Away Overseas Assets in a Will in Singapore
A will can be difficult to write in Singapore, especially if you have assets, such as bank accounts, properties or jewellery, located overseas. Even if you currently do not own any overseas assets, you may acquire them over the course of your life.
In this article, we will discuss 3 possible ways you can deal with your overseas assets, namely:
- Including your overseas assets in a Singapore will
- Writing a will for each jurisdiction you have assets in
- Creating an International will
Including Overseas Assets in a Singapore Will
It is possible for a Singapore will to include your overseas assets – in fact, testators (people who create their wills) often do this as it is sometimes more convenient than drafting two separate wills. However, before you decide to do this, there are certain issues that you must consider, namely:
- That your overseas moveable property is subject to Singapore law
- That your overseas immovable property is subject to the laws of the jurisdiction it’s located in
- The “resealing of probate” in other jurisdictions
- That other jurisdictions may not recognise your will
Overseas movable property is subject to Singapore law
Under section 5 of the Wills Act, all movable properties, such as cars, money in bank accounts and jewellery, will be subject to the laws of whichever jurisdiction:
- The will was created in;
- The testator was residing in when either the will was created, or at the time of his death;
- The testator usually resided in when either the will was created, or at the time of his death; or
- That the testator was a national of when the will was created, or at the time of his death.
This means that if you create a will in Singapore, any overseas movable property mentioned in the will would also be subject to Singapore law.
For example, if at the time of your death you have young children who are dependent on you, your children’s guardian could apply to court for the maintenance of your children under Singapore’s Inheritance (Family Provision) Act.
The court can then order for your overseas movable property to be used to pay for the maintenance.
Overseas immovable property subject to the laws of the jurisdiction its located in
On the contrary, section 5 of the Wills Act states that immovable properties, such as land, condominiums, and houses, will be subject to the laws of the jurisdiction where the immovable property is located.
This means that even if you create a will in Singapore, the house you own in Germany that was listed in the will would still be subject to, and therefore dealt with according to, German law. Your beneficiary (i.e. the person who inherits your property) may thus also have to pay the appropriate taxes for the property, as specified by German Inheritance tax rules.
Resealing of probate in other jurisdictions
When you create a will in Singapore, the executors of the will whom you have appointed must apply to the Singapore court for a “Grant of Probate (GOP)”, which will give them the power to carry out the instructions in your will.
However, when your will includes assets (whether movable, immovable or both) located in another jurisdiction, that jurisdiction must “reseal”, or give legal recognition to, the probate that your executors were granted in Singapore. Only then will your executors have the same power to carry out your instructions in relation to the overseas assets.
Note that only Commonwealth jurisdictions, such as Australia and Malaysia, can reseal probate granted by a Singapore court. If a jurisdiction rejects your application for the resealing of probate, it is likely that you will be treated as having died intestate (i.e. having died without making a will), and your overseas property will be subject to the inheritance laws of whichever jurisdiction your property is located in.
If the majority of your assets are in Singapore and you only have a few, simple assets overseas, such as a single apartment in Malaysia, it could be more convenient to create just one will in Singapore and subsequently rely on the resealing of probate overseas.
However, note that the resealing of probate involves its own separate court application, and thus involves more costs. This extra expenditure is one of the reasons why testators sometimes choose to create separate wills for the assets that they hold in different jurisdictions (as explained below) instead of having just one Singapore will which includes their overseas assets.
Other jurisdictions may not recognise your will
Another risk of including your overseas assets in your Singapore will is that sometimes other jurisdictions may not recognise your Singapore will. Consequently, you will not be able to have that will executed in that jurisdiction according to your wishes.
In general, jurisdictions that do not follow the common law, such as Indonesia and Thailand, will not recognise a Singapore will.
In contrast, common law jurisdictions, such as the United Kingdom and New Zealand, will generally recognise a valid Singapore will. However, this is also dependent on whether the jurisdiction in question:
- Accepts the formal validity of the will; and
- Accepts the terms of the will.
In relation to these two factors, a common law jurisdiction may sometimes accept that a will is formally valid (i.e. it complies with the jurisdiction’s legal requirements for making a will), but also refuse to accept the terms of the will because they conflict with other national laws or regulations. This results in the will not being recognised by the jurisdiction.
For example, if you were to leave all your UK assets to charity, a person who can show that they were financially dependent on you can apply to the UK court under the Inheritance (Provision for Family and Dependants Act) 1975 to challenge the terms of your will.
If they are successful in their application, the term in your will stating that all your UK assets should be donated to charity would not be accepted, and a portion of such assets could be allocated to the applicant instead.
Writing a Will for Each Jurisdiction Where You have Assets in
If you have overseas assets, another option that you can consider is to make a will in every jurisdiction where your assets are located, such that each asset is dealt with in accordance with the laws of that particular jurisdiction.
What is meant by “jurisdiction”?
Note that “jurisdictions” are not the same as countries. This is because larger countries may have different laws from state to state.
For example, in the United States, each state is considered a separate jurisdiction and they have different laws and processes from other states.
What to look out for writing a will for different jurisdictions
Whether the different laws of each jurisdiction affects the validity of your will
Since different jurisdictions have different laws regarding the validity of a will, you will have to take into account these laws when drafting each separate will.
The best way to ensure that each will is valid would be to get good legal advice from lawyers in each jurisdiction. This will reduce the risk of the terms in your will being superseded by the laws in that jurisdiction.
Whether it will be time-consuming and costly for your executor to obtain a GOP in each jurisdiction
Before creating separate wills for different jurisdictions, keep in mind that your executor will have to obtain a GOP in each jurisdiction where you have assets before they can carry out the instructions in your wills for such assets.
Obtaining a GOP can be costly and time-consuming. Hence, you should consider whether your asset is worth the time and money that your executor may have to spend in order to act on it in accordance with your wishes.
For example, if you had an Australian bank account with $500 in it, it may not be worth spending almost $400 to apply for a GOP to gain access to the account.
Whether you have existing wills that override one another or create confusion as to your wishes
It is also important to be vigilant and ensure that each will that you create does not override or create confusion among existing wills.
For example, let’s say you first create a Singapore will that states that your house in Malaysia should be given to your sister.
Subsequently, you create a will in Malaysia that states that the same house should be given to your children, intending to override only the term in your Singapore will that states how your house in Malaysia should be dealt with.
Depending on how the second will has been worded, there is a chance that the second will (being your last will) may override the first entirely instead, or cause confusion as to what is your intended wish for your house in Malaysia.
You may have come across the concept of international wills, which are wills drafted according to certain requirements in the Convention Providing a Uniform Law on the Form of an International Will.
International wills will be recognised as valid in all countries for which the Convention has entered into force. This means that it will be possible to make just one international will to deal with your overseas assets in all the countries for which the Convention has been implemented.
However, take note that Singapore is not a party to the Convention. This means that international wills are not recognised in Singapore, and are hence not such a viable option for people from Singapore intending to make a will.
Tips for Creation of Wills
When creating your will, you should list all your overseas assets so that your executor is made aware of them, and can apply for the appropriate GOPs to execute your will.
This should be done even if you have included a “residuary clause” in the will, which is a clause that instructs your executor on how to distribute property that was not specifically mentioned in the will.
Next, consider the size of your overseas assets and assess whether it is worth the time, money and effort to have your executor to deal with them on your behalf.
If the value of such assets does not justify the cost of accessing and distributing them after your death, it may be prudent to forgo them and leave them out of your will altogether.
Finally, you should also consider consulting a wills lawyer, who will be able to advise you on how you should deal with your overseas assets, and draft clear wills on your behalf for all your assets.
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