If you own assets in more than one jurisdiction, should you try to cover everything under one will, or should you have a separate will in each jurisdiction?
As our lives become more international, it has become far more common for people to own assets in more than jurisdiction. As a result, I am 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. Unfortunately, the answer depends upon your circumstances. However, here are a few pointers:
Advantages of multiple wills
For many people, the best choice is to have multiple wills.
- A simple practical advantage to having a will in each jurisdiction is that the lawyers in both jurisdictions can get on with the process of putting the will through probate (or its local equivalent), as soon as they 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 process I am describing here relates mostly to commonwealth countries, but there is an equivalent problem whichever type of jurisdictions are involved.)
- The wills drawn in each jurisdiction would have been drafted by lawyers experienced in working in that jurisdiction, and therefore will be designed to be effective there. This is especially the case where estate taxes or inheritance taxes are an issue, because the lawyers drawing the wills 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, most commonwealth countries, and most states of the US are 'common law' jurisdictions, most countries in Continental Europe are 'civil law' jurisdictions and most Islamic nations are 'sharia law' jurisdictions. The provisions of a will drawn in one of these jurisdictions will not fit easily with the laws of another. A common problem, for example, is that a civil law jurisdiction (for example Spain) 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 Spain.
Advantages of a single will
- It can be much cheaper to get a single will drawn up than to have numerous wills drawn up by several different lawyers in several different countries. (This could prove only to be a short term advantage, however, since the administration of the estates later on might prove to be more expensive).
- Some jurisdictions, mostly civil law jurisdictions, have a concept known as 'forced heirship' 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.
- I have blogged previously about the EU Succession Regulation here. Put briefly, this is a law which says 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 Spain, 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 Spainish forced heirship.
- Another factor to bear in mind, especially for simple estates, is that if there is only one will then updating it whenever something changes only involves updating one document, not several, and therefore reduces the associated costs.
- One problem which appears obvious, but which actually we see time and time again in practice, is that multiple wills are drawn, but the wills which are signed later unintentionally revoke 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. It is important, however, that this is only invoked if the other nation in question has the same rule (although most common law countries do).
As described above, there is no ‘one size fits all’ and professional advice should always be sought.
This article was originally published by Hugh James