Many Indians now hold assets in both India and other countries. When creating a plan for how these assets will be passed on after your death, you have two main options:
- Separate Wills for Each Country (Situs Wills): This approach involves creating a separate Will for each country where you own assets. Each Will is drafted according to the specific laws of that country, making it easier to enforce and interpret in local courts.
- Single Will for All Assets (Multi-Jurisdictional Will): This option involves creating one Will that covers all your assets, regardless of location.
Here’s why separate Wills (situs Wills) are often preferred:
- Easier Execution and Interpretation: Local laws are followed, ensuring smooth handling by courts.
- Faster Probate: Each Will can be directly submitted to probate without waiting for it to be probated in your home jurisdiction and then probating it in second jurisdiction which is a two-step time consuming process. Problems may also arise if the original Will is retained by a foreign court
- Reduced Fees: You only pay probate fees in each country where you have assets, not duplicated fees across jurisdictions.
- Increased Privacy: Only assets in the specific Will are disclosed during probate, not your entire global estate. If there are discrete assets in a jurisdiction which are intended to be left to different beneficiaries in that jurisdiction, it will be better to deal with those assets in a separate Will.
- Avoiding Ambiguity: Problems can occur when different interpretation for important terms is made. For example, will the term “children” under local law include or exclude step children, adopted children or illegitimate children? Does the term “spouse” refer to only legally married spouses or live-in-partner’s or same sex spouses?
- Flexibility for Different Asset Types: Inheritance rules for specific assets can vary by country. E.g. in India if an immovable property is held jointly, the joint holder can bequeath his/her share under a Will. In some countries in case of joint ownership the asset automatically passes on to the surviving joint holder. Your local attorney would have knowledge of such issues.
- Accommodating Local Laws: Forced heirship laws or community property rules in some countries restrict how assets can be distributed. In India, the Muslim personal laws and the state of Goa has certain restrictions. Such local laws shall be considered while preparing a Will.
Important Considerations When Using Separate Wills:
- Revocation clauses: Include clear revocation clauses in each separate Will to ensure that they do not nullify Wills from other jurisdictions. Both Wills should acknowledge their simultaneous validity so that a later Will doesn’t automatically revoke an earlier one.
- Residuary Clauses: These clauses deal with leftover assets. Wording needs to be precise to prevent conflicts.
- Consider that liquid assets in a jurisdiction may not cover all taxes and liabilities. Decide how tax burdens will be allocated among estates, as this can be a significant issue.
- Specifying Governing Law: Each Will should explicitly state which governing laws apply to the properties it covers to avoid legal ambiguities.