Different Countries Different Rules – What does it mean for my estate?

In society today people are mobile. There are an increasing number of people who choose to live and work in different cities in all parts of the world. They may own property in a number of places. A person may die intestate in one jurisdiction leaving property in other states and territories – so what intestacy rules apply?

Traditionally speaking the applicable rules regarding intestacy are those where a person is living at the date of death (in relation to their personal property); however what happens to a persons real estate holdings is determined according to the Lex loci rei sitae (usually shortened to lex situs) – the law where the property is located.

Where a person dies owning land in a foreign country and land in an Australian state, the common law rule (that applies in some jurisdictions) is that you cannot bring a court action in relation to foreign property.

Generally Courts hold that a Will may be regarded as valid if it was considered to be valid in the jurisdiction where the Will maker was a citizen, lived, or where the Will was executed- either at the date of the Will maker died or the date the Will was created.

If you have a valid Will courts accept that it is governed by the law that the Will maker intended to govern it. A court will presume that the law where the Will maker made the Will shall apply to their property – both personal and real estate – unless the Will maker has indicated otherwise.

Within a country like Australia if you were to die intestate the laws of each state would apply to your real estate holdings. If on the other hand you own property in different overseas jurisdictions it could cause further problems to your loved ones. The best way to ensure that your estate is divided the way that you want it to be is to make a Will and to keep it updated.

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