We commonly come across clients who have foreign assets in other provinces and in other countries.
For example, you may be a Canadian citizen, but you spend the cold Canadian winters in sunny Florida. Since you go to Florida regularly, you bought a nice little home near the beach.
If you have assets in other provinces or other countries the main issue you need to consider when preparing your will is whether one will is sufficient to cover all your foreign assets.
You must be careful because a will that is prepared and executed under the laws of one province that deals with the distribution of assets in another country may not be a valid will. It depends on whether the will be recognized by the laws of the country where the asset is located. So, for instance, if you made a will in Florida, does Florida law recognize the laws of Ontario, where you may have some assets?
Other factors to consider are your domicile and whether the foreign-owned asset is real property or personal property.
To give you a tangible example so you can see how this would work, let’s say you make a will here in Ontario, and in this will, you gift your Florida vacation home to your brother.
In this case, here are the possible results of this action:
Your brother may or may not receive the home in Florida, depending on whether your Ontario will comply with the law relating to wills in Florida.
If the will is not valid in Florida, the house in Florida will be dealt with as if you died without a will. This means, whether your brother will get the Florida home will depend on what the law in Florida relating to property distribution is when someone dies without a will.
So, now that we know what can happen when you have assets in another country, what are your options. Some of your options are:
Make multiple wills for multiple provinces or countries. You should consult with a lawyer to make sure that each will complies with the law of the country or province where the asset is located. You can also work with a lawyer in practices in the country where the asset is located to help prepare the will.
Create an international will, which is recognized by the Succession Law Reform Act. An international will is valid between countries that are parties to the “Convention providing a uniform law in the form of an international will”. A will that is prepared and signed in any member country and distributes assets located in any member country will be considered valid if it’s made according to the form of an international will. The problem with an international will is that not many countries are members. Countries that are members include Canada, Italy, and France, but not the United States. In Canada, Ontario, Manitoba, Newfoundland, Alberta, Saskatchewan, PEI, New Brunswick, and Nova Scotia recognize international wills, but BC and Quebec don’t.
So, if you want to include your assets abroad in your estate planning, there is a lot to consider.
You need to understand the factors to consider and the issues that can arise.
If you have foreign assets, give us a call, so we can help ensure they are taken care of in the way you want.