Estate Planning: Multi-Jurisdictional Assets

In today’s internationally mobile world, it is common for people to reside in more than one jurisdiction and to hold assets in multiple jurisdictions. What are some estate planning considerations for holding foreign property?

How to Plan an Estate with Foreign Assets

First, determine the succession laws in the jurisdiction where you hold the foreign property. Are there local inheritance laws that limit the people you can name as beneficiaries? It is prudent to consult with a local lawyer where you hold the assets to obtain advice about the respective jurisdiction.

Is Your Canadian Will Sufficient?

Assuming you are free to deal with your foreign assets in accordance with a Will or other testamentary document, consider whether the Will you prepare in Canada will be accepted by the estate court of your foreign jurisdiction. While the International Wills Convention 1973 (also known as theUN Convention Providing a Uniform Law on the Form of an International Will) purported to recognize Wills prepared in other jurisdictions that adhere to certain requirements, only 21 countries have accepted the Convention, and of those that have signed, several do not enforce the Convention, so it is not an entirely useful piece of legislation. That is one reason to consider preparing Wills specific to the jurisdictions in which the assets are situated, also known as separate situs Wills.

Is One Will Enough?

Even if your Will is accepted in another jurisdiction, another reason to consider doing a separate Will for foreign assets is the potential cost to your estate to obtain either an ancillary appointment (in the case of a Will prepared outside of the Commonwealth) or to “reseal” a Will that has been proven in a different jurisdiction elsewhere within the Commonwealth. If there is only one Will covering multiple jurisdictions, one of these actions will be necessary, and this will cause delay in administering the estate because it will be necessary to obtain probate with the same document consecutively (one jurisdiction at a time), as opposed to concurrently if there were separate Wills for each jurisdiction. Also, if a foreign Will is being used for Canadian assets and is not in English or French, it must be translated before applying to court, another expense to the estate. 

Careful Planning

When preparing separate situs Wills, care should be taken to ensure:

• That the person(s) you appoint as your executor(s) can deal with your assets in the given jurisdiction (and consider any adverse consequences of appointing a non-resident in that role);
• That the execution of one Will does not revoke the existence of the other;
• That there is clarity as to which assets are covered by which Will;
• How the Wills should work together to address the issue of tax and other liabilities, and how that may impact your estate if there are different beneficiaries under each Will and different debt obligations in each estate;
• If there is a deficit in one estate to pay legacies, how the Wills can work together to address the overall estate plan. 

If you wish to create an estate plan for assets in multiple jurisdictions, our estate planning team at Mills & Mills LLP will be happy to help.

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