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Making a Foreign Will

Jan 19, 2021

When a person dies without leaving a valid Will, there can often be some uncertainty as to who will inherit from their estate. In a situation such as this, the person is regarded as having died ‘intestate’, and whoever is entitled to the estate will be determined by a set of rules commonly known as the ‘intestacy rules’.

Intestacy rules can vary between different jurisdictions, meaning assets can be inherited differently depending on where in the world you reside as at the date of your death. If, for example, you reside in Spain, then the intestacy rules in Spain will apply and similarly, if you reside in England & Wales, the law in England will prevail.

To give you peace of mind and to avoid the uncertainty that can result from the application of different rules in different jurisdictions, we strongly recommend that you consider putting in place a Will to ensure your estate passes as intended on your death. It is also advisable for those with ‘real property’ held abroad to consider making a Will in the country in which the property is situated. Having separate Wills prepared in separate jurisdictions can often speed up the administration of your estate in general. It also allows you to elect for the law applicable in a specific jurisdiction to apply to your ‘foreign’ estate. For example, if you are a UK national residing in France and you decide to make a French Will to deal with your holiday home in France, you can elect for the law applicable in England & Wales to apply to your French property so that you are free to leave the property to whomever you wish rather than being forced to leave the property to family members as dictated by the ‘forced heirship rules’ that apply in countries such as France and Spain.

Whilst the EU Succession Directive allows foreign assets to be dealt with under your English Will, having a ‘foreign’ Will prepared in the country where your foreign assets are situated will almost certainly be quicker, easier and more cost effective when it comes to administering your estate. This means that the people dealing with your estate will find the process easier when they come to deal with the foreign aspects of the administration.

If you are considering putting in place a foreign Will and currently have a UK Will, it is important to make clear that your earlier Will should not be revoked by your later one. If you are making a Will abroad, you should take advice from a lawyer in the country in question and you should make your lawyer aware of the content of your earlier Will(s) if appropriate. This will ensure that any Will made subsequently does not inadvertently revoke or conflict with any earlier Will(s). Ideally, the provisions of each Will should be similar.

If you require any further information on making a Will or on how your assets will be distributed in the event of your death, please visit our Private Wealth and Inheritance hub. Alternatively, if you would like to speak to a member of our Private Client team, please call +44 (0)1276 686 222.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to your own particular matter before action is taken.

By Sonia Dhesi

Senior Solicitor, Private Wealth & Inheritance

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