Separate wills for UK and foreign assets

This is a question that comes up frequently for people who own property or other assets in more than one country, and the answer is nuanced.

The short answer:

You do not strictly need separate wills, but in many cases it is strongly advisable to have them.

Why a single will can cause problems:

A will made in England and Wales can in principle cover worldwide assets. However, relying on a single will to deal with assets in another country often creates practical difficulties.

1. The foreign country may not recognise the English will, or may require it to go through a lengthy and expensive process of authentication, translation, and local validation before the assets can be dealt with.

2. Obtaining a grant of probate in England and Wales does not automatically give your executors authority to deal with assets abroad. They will usually need to obtain a separate grant or equivalent in the foreign jurisdiction, which can involve significant delay and cost.

3. Different countries have different rules on forced heirship, community property, and succession. Some civil law jurisdictions, for example France, Spain, and many Middle Eastern and Asian countries, impose rules that override the terms of your will in relation to assets situated there. A single English will that ignores those rules may be ineffective or partially overridden in respect of those foreign assets.

4. The EU Succession Regulation (Brussels IV) allows a person to elect the law of their nationality to govern succession to their estate within most EU member states, but the UK is not a party to this regulation, and the interaction between English succession law and foreign rules can be complex.

Why separate wills are often the better approach:

Having a separate will in each country where you hold significant assets means each will is drafted in accordance with local formalities, in the local language, and can be administered locally without needing to produce and authenticate a foreign document. This usually speeds up the administration of the estate considerably and reduces cost.

Important practical points:

1. If you do have separate wills, they must be carefully drafted so that one does not accidentally revoke the other. This is a common and serious trap. Each will should be expressly limited to assets in the relevant jurisdiction and should contain a clause making clear that it does not revoke any will dealing with assets elsewhere.

2. The wills should be coordinated so that there are no gaps and no overlaps, meaning every asset is covered by one and only one will.

3. You should ensure that each will complies with the formal requirements of the relevant jurisdiction. An English will must comply with section 9 of the Wills Act 1837 as amended. The foreign will must comply with whatever the local law requires.

4. Consider the interaction between inheritance tax in England and Wales and any equivalent tax in the foreign jurisdiction. The UK taxes worldwide assets of UK domiciled individuals, and double taxation agreements may or may not provide relief depending on the country in question.

When a single will might be acceptable:

If the foreign assets are modest, for example a small bank account, and the relevant country has a straightforward process for recognising foreign wills, a single English will may be sufficient. The cost and complexity of a second will may not be justified.

Practical next steps:

1. Take stock of what assets you hold and where they are located.

2. Consider instructing a solicitor in England and Wales who has experience in cross-border estate planning. Many firms work with correspondent lawyers in other jurisdictions to ensure the wills are properly coordinated.

3. If you already have a will in England and Wales, check whether it purports to cover worldwide assets and whether making a foreign will might inadvertently revoke it.

If you let me know which country or countries are involved, I can give you a more tailored answer about the specific risks and considerations for those jurisdictions, though my primary expertise is in the law of England and Wales.