If you own assets in more than one country, is it preferable to cover everything under one will, or have a separate will for each country?
In a global world, it has become far more common for people to own assets in more than jurisdiction. As a result, we are often asked whether the right thing to do is to have one will covering worldwide assets, or alternatively to have separate wills in each jurisdiction where there are assets. It depends upon your circumstance. However, here are a few pointers.
Why multiple wills?
For many people, the best choice is to have multiple wills.
- The process of putting the will through probate (or its local equivalent) can start as soon as lawyers in both jurisdictions are aware of the death. If there is only one will then it must usually be probated in the nation where it was drawn, before the courts of that nation can issue sealed and certified copy of it for use in the other nation, and only then can the process begin there.
- The lawyers drawing the wills in each jurisdictions are experienced in working in that jurisdiction and will be able to advise on how to mitigate the taxes in that local jurisdiction.
- You get a particular problem where the two jurisdictions have different types of law. For example, the UK is “common law” jurisdiction and Italy is “civil law” jurisdiction, The provisions of a will drawn in one of these jurisdictions will not fit easily with the laws of another. A problem, for example, is that a civil law jurisdiction (for example Italy) will not recognise the concept of trusts, while all common law wills (such as those drawn in England and Wales) are built around trusts, and indeed executorship is a kind of trust. It follows that a will drawn to be effective in England and Wales would not necessarily be effective – indeed from a tax view point could be very damaging – if applied in Italy. And again The legal right of a surviving spouse and of children of a share of one third of the estate.of the deceased “Legitim” in Italy does not apply in England.
Why a single will?
- It is cheaper to get a single will drawn up than numerous wills. The cost of the administration of the estates later on nay be more expensive nevertheless
- Some jurisdictions, mostly civil law jurisdictions, have a concept known as ‘forced heirship’ , (Legitim in Italy is an example) which means that a person must leave their estate to certain specified heirs rather than, as in England and Wales, to anyone who they chose. It follows that, if the local law permits it, people can achieve things through an England and Wales will which might not be possible in a will drawn in the jurisdiction itself. This is the one (and probably the only one) situation in which I would strongly recommend that a single will is better than multiple wills.
- EU Succession Regulation states that someone who has assets situated in most EU nations (although not the UK, Denmark or Ireland) can elect for the law of their nationality to apply to the succession to their assets in that jurisdiction. A British person who owns a holiday home in Italy, for example, can use this provision to deal with the succession to their holiday home, and it might well be advisable for them to do that if what they want to achieve is different from the provisions that would apply under Italian “forced heirship “.
- In the case of simple estates, in case of updating the will, it involves updating one document only, not several, and therefore reduces the associated costs.
- in the case of multiple wills drawn, the will which is signed later unintentionally revokes the ones which were signed earlier. This problem disappears where there is only a single will – and the important point where there are multiple ones is to ensure that every will that is drawn only revokes previous wills to the extent that they apply in that jurisdiction.
- Under UK law, the law of the place where someone is domiciled applies not only to the assets situated in that place but also to ‘moveable assets’ (moveable assets means anything other than land and buildings) situated overseas. Where this applies, and where the overseas assets are moveable, it can be a reason to stick to only the one will.
There is no ‘one size fits all’ and professional advice should always be sough