Peace of Mind in The Sun
This article appeared in the Mearns Press in June 2007.
Question:
Answer:
Not necessarily, it may very well be that you will require to draw up a foreign Will.
The physical location of an asset is important for several reasons:-
- The laws of succession vary from country to country. Although in Scotland a person is free to dispose of his assets in any way he pleases, subject only to the legal right of his spouse and children to share in part of his moveable estate, he may not be so free in other countries.
- The administration of the asset on the death of the owner will also vary from country to country. In Scotland, Confirmation of the executors is required before an asset can be sold or transferred to a beneficiary, but this may not be sufficient for other countries and further local procedures may be required.
- An inheritance tax or other similar type of tax may be payable abroad, in addition to the asset being subject to inheritance tax in the UK (although there may be a double tax treaty in effect which will offset one tax against the other).
Generally speaking, “heritage” (ie land and buildings) is dealt with by the law of the place where it is situated. A foreign Will is necessary.
Conversely, “moveable” assets such as a bank account or shares are generally dealt with by the law of the land with which the owner is most closely connected (normally where they live). A foreign Will is not usually necessary for these assets.
Even if you have taken local advice and drawn up a Will abroad, you still have to be careful when making or updating your Will in Scotland. It is normal practice for Scottish Wills to include a clause revoking all previous Wills (to avoid doubt about which Will is valid at the time of death). However, if this revocation clause is not restricted in some way, such as by excluding any Will made in the foreign country, then the foreign Will may be rendered invalid.
So, I suggest you take the advice of a solicitor in the country where you plan to purchase the property
Article compiled by Elspeth Talbot.
Posted by Sharon Clift on Jun 22, 2007
