What is an international will?
An “international Will” often refers to a Will that is intended to take effect in more than one jurisdiction. Where an international Will is intended to cover a person’s worldwide estate, it may be referred to as a “worldwide Will”.
A similar term is “offshore Will”, which may refer to a second Will that has been prepared to deal with an individual’s foreign assets only. For example, an individual domiciled in South Africa may also have assets located in the British Isles. In this example, the individual may decide to have one Will in South Africa, and a second, separate Will to deal with the succession to the “offshore” assets in the British Isles.
What is a jurisdiction?
A jurisdiction is an area with its own legal system. We distinguish between countries and jurisdictions because one country can contain more than one jurisdiction.
For example, within the United Kingdom, there are three separate jurisdictions: England & Wales, Scotland and Northern Ireland. In addition to this, the Crown Dependencies of Jersey, Guernsey and the Isle of Man (which make up part of the British Isles but are not part of the United Kingdom) are three separate jurisdictions.
Who might need more than one Will?
In many cases, it will be appropriate for a person to have one Will. However, where a person has assets situated in more than one jurisdiction (otherwise known as “offshore” or “abroad”), it may be appropriate for them to consider more than one Will.
A person may acquire assets in another jurisdiction for a number of reasons – for example, they may move from one country to another or may decide to invest money offshore for tax reasons. Common examples of offshore assets include bank accounts, investment portfolios and holiday homes.
What are the main advantages of an international Will or an offshore Will?
One of the main advantages of having an offshore Will is that it will facilitate the simultaneous administration of the estate. This means that instead of waiting for a Will to be submitted in the home jurisdiction before the offshore assets can be administered, the offshore Will can be submitted at the same time as the other Will. In theory, this should speed up the overall time it takes to finalise the estate.
Another advantage is that where the offshore asset is a property, an offshore Will can minimise complications with the succession to the property. This is because the offshore Will would have been drafted in the language of the offshore jurisdiction and using their terminology. This will help to facilitate the succession process.
Thirdly, it is possible that an offshore Will that has been drafted in accordance with offshore estate planning advice can utilise any available tax planning opportunities.
There are certain disadvantages associated with offshore Wills. However, the risks of accidental revocation and partial intestacy can generally be mitigated by careful drafting. In addition, whilst it may initially cost more money to have two Wills rather than one, in our experience, the additional costs are offset by the money that the estate saves due to a more streamlined estate administration.
How can our international wills solicitors help?
Our international solicitors can advise on the following:
- When it would be appropriate to have one worldwide Will, and when it would be appropriate to have more than one Will.
- Where an offshore Will is suitable, we can advise the appropriate territorial scope of the Wills.
- Where a person already has a Will (or Wills) we can advise whether the existing structure of Wills is appropriate, and whether there are any existing risks of accidental revocation or partial intestacy.
- We can provide UK estate planning and UK inheritance tax advice for individuals domiciled in the UK and those domiciled outside of the UK.
- We can draft worldwide Wills, Wills for use in the UK and British Isles, and Wills for use outside of another jurisdiction (for example, a Will in relation to a person’s estate outside of South Africa).
The process for making an international will
Here is an outline of the process and considerations that we take when preparing an international or offshore Will:
- The first stage is to compile information on the client concerning their existing Will (or Wills), estate planning, family, assets, liabilities, the jurisdiction (or jurisdictions) where the assets are registered and the client’s testamentary wishes. To compile this information, we will forward a Will questionnaire to the client, which can be completed electronically and sent back to us by email.
- Once this information is available, we can then analyse whether preparing an international or offshore Will is appropriate for the client. For certain foreign assets, it may be more appropriate for a client to just have one international worldwide Will.
- As well as analysing what type of Will is appropriate, we will analyse what the best Will structuring for the client will be. Using the example under the first heading, we would recommend whether it is best for an offshore Will to apply to all jurisdictions outside of South Africa or, depending on the client’s circumstances, it may be best for the offshore Will to only apply to the British Isles with the South African Will applying worldwide – except for the British Isles.
- Once we establish whether to prepare an international or offshore Will, we will then quote a fixed fee for the client’s approval. Once the fee is approved, we will then send our letter of engagement and terms of business to the client for their approval. Our letter of engagement will also outline the identification documents that are required from the client.
- Once our terms have been agreed and the client has been identified, we will then prepare a draft Will with an accompanying commentary for each clause. The commentary is designed to assist the client with understanding and approving the draft Will. If the client has an existing Will (or Wills), the draft Will that we prepare will be carefully worded to fit alongside the existing Will.
- Following approval of the draft Will, a final version will be prepared for the client to execute (sign in accordance with law). Depending on the client’s domicile, nationality, location of the assets and the jurisdiction where the Will is being executed, we will advise on the correct way of executing the Will, so that it is recognised as valid in the relevant jurisdictions.
- Once the Will has been executed, the original version can either be kept in our firm’s safe storage for no fee or, alternatively, the original can be kept in safe keeping with the client or their advisors.
- It is important that the client’s family and executors are made aware of the existence of the Will and that the executors have access to a copy and know where the original is kept.
- If a second Will has been prepared and the client plans to subsequently update the Will in their home jurisdiction, they should always advise the person who drafts the Will that they have a second Will and to present a copy. This is to avoid the updated local Will containing a clause which accidentally revokes the second Will.
- If the circumstances change in the future for the client, for example, testamentary wishes change, or the nature or location of the foreign assets change, we will consider if any updates to the Will are required.
We recognise that it is not always possible for us to meet physically with our clients, and we can conduct the entire process set out above remotely by email, letter and telephone.
To request a Will questionnaire, please email us by clicking here.