All About Estates

Key Considerations When Drafting a Will with International Assets

If you have clients with assets outside Canada, they likely look to you for guidance to support drafting of testamentary documents.

In a previous article we explored the considerations that should be kept in mind when assets are owned outside of Quebec, within Canada – given the civil law and common law differences. However, even if the testator has assets in multiple common law or civil law jurisdictions, estate and inheritance law may vary. Here are some important considerations to keep in mind:

Different legal systems

While clients may be aware that different countries have distinct legal systems, they may not fully understand how that governs and impacts estate inheritance. Some countries follow civil law, while others adhere to common law. And, even if both countries follow the same legal system, specifics around inheritance may vary. It’s essential that you and your clients understand how each country’s legal system will treat their estate. Researching and understanding this is crucial to drafting a will that addresses their needs and protects their loved ones.

Seek Professional Advice

One of the most important things to do is seek advice from legal professionals who specialize in estate planning specifically between the multiple jurisdictions concerned. They can provide tailored guidance.  Professionals dedicated to cross-border estate planning can help navigate the different legal systems, tax regimes, and inheritance laws, ensuring that the estate plan is robust and effective. Depending upon needs and particular circumstances, alternative solutions such as trusts might be considered.

Your advisor could also check to see if there are tax treaties between where the client resides and where the assets are located, mitigating any risk of double taxation. Consulting with cross-border tax advisors is crucial to minimize the financial impact. They are better situated to help with complex tax regulations and identify strategies to ensure that assets are preserved and dealt with as your client wishes.

Drafting Multiple Wills

As a rule of thumb, it may be beneficial to have separate wills drafted for each country where assets are held. This ensures that your client wishes are respected and not undermined by potentially different laws. Furthermore, it is of the utmost importance to coordinate the drafting of wills to avoid conflicts and ensure they do not revoke each other. Working with legal professionals in each country is crucial to help you draft wills that are legally sound, providing clarity and mitigating risk.

Choosing Executors

One of the most important matters is selecting executors who are familiar with the legal systems in each country where assets are located. This can help narrow down the process and ensure that the estate is managed efficiently. A corporate executor could be very beneficial under these circumstances.

Asset Documentation

Maintaining a clear and updated list of assets could save time for your executor and ensure a smooth & efficient administration.  It is not unusual for an executor to locate assets that the testator/testatrix had forgotten about. Keeping an updated inventory of your assets, like real estate property, bank accounts, investments, and personal belongings, is another crucial consideration to keep in mind.

If you have any questions please do not hesitate to reach out.

Written by Gustavo Paez Trujillo

1 Comment

  1. Dongshin Nam

    January 31, 2025 - 7:12 pm
    Reply

    A great article to make people aware and guide how to prepare for international assets

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