Expat Wills

I have been assigned to a one year position in Dubai, but all of my assets are in the US. I know I need a Last Will and Testament, how do I get one written?

Expat Last Will and Testament

This is a problem not only for people of temporary work assignments, but also for people who have permanently relocated, or have retired overseas. In our new mobile global economy, the number of expats is growing year on year. There are currently about 2.8 million Canadians living abroad (9 percent of the population) with over a million in the US alone. 6.3 million Americans live overseas, and 4.6 million Brits (with the number one destination being Australia at 1.4 million).

Many of these expats still have assets in their home country, and if they were to die without a Will, these assets would be subject to distribution by the intestate laws of the jurisdiction in which the assets are held. These laws are complicated, and in the UK, they are about to change on October 1st this year.

Estate laws vary across each jurisdiction, which is why we recommend that you have a Will written for each country in which you hold assets. It would not be possible to probate an estate in say British Columbia, using a Will that was written under the laws of Nepal. And although there is such a thing as an International Will, they are generally very vague and do not provide the level of instruction of a well written local Will.

If you were a Brit that had retired to Australia, but still owned a house in the UK, we would recommend that you prepare a Will under English law specifically written to cover your UK assets, and then prepare a separate Will to cover your Australian assets. However, there are a few issues with this;

The expat Wills must not cancel out other Wills

Most Wills have a revocation clause which states “I hereby revoke all former wills, codicils and other testamentary dispositions made by me”. This could be an issue if your Australian Will is cancelled by your UK Will or vice versa.

The two Wills must not contradict each other

You cannot have two Wills that seemingly deal with your “entire estate”. It is important that each Will specifically states that it deals only with the assets held in a particular jurisdiction. If the Will states that it deals exclusively with the assets situation in England, and then instructs that the entire estate goes to Cancer Research, it is clear that any assets held in Australia, Canada or China are not subject to the terms in this Will.

How to create a Will under one jurisdiction while living in another country

This is perhaps the thorniest issue. If you are currently living in Hong Kong and need a Will to cover your Canadian assets, how can you find a local lawyer or notary who will draw up a Will that complies with Canadian law?

But there is no legal requirement to use a lawyer to prepare a Will – anybody can write their own Will, it’s just very difficult. Starting with a blank piece of paper it would be almost impossible to use the correct language to appoint an Executor, create alternate plans, impose powers and restrictions on the Executor and have all of the language comply with the laws of the target jurisdiction.

The next option would be to download a blank form from the internet or buy one from Amazon, but the blank form would not likely take into account the revocation issue highlighted above, and it certainly would not deal exclusively with the assets held only in the target jurisdiction. Most importantly, blank forms are generally very poor; they do not adequately deal with backup situations (if your main beneficiary or Executor were to pre-decease you), or correctly apply a residual clause for your estate in case your main plan could not come into effect e.g. if you and your main beneficiary were both involved in a common accident.

The solution at ExpatLegalWills.com

The final option is a service like this one at ExpatLegalWills.com. Our service allows you to create Expat Wills, specific to the local laws of Canada, the US or the UK. This means that you can create a Will for each of these jurisdictions from anywhere in the World. If you are an American citizen living in Mexico, but still have a home back in the US, you can use our service and prepare a Will specifically that deals with your US assets that will comply to the law of the State in which the asset is held.

The service also works for immigrants coming to the US, Canada or UK who have assets back in their home country and have a Will written under the laws of their home country. They can create a Will to cover their new home which deals only with that new home and does not revoke or contradict their existing Will.

We are very happy to answer any questions that you may have on the service available at ExpatLegalWills.com.

Tim Hewson