Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 28 January 2017.
Greg and Jane are in their 60s and have no children. Jane is British and Greg is an Australian citizen. They reside in Australia and have done for many years.
They make Wills leaving their estate to each other and when they both pass away, their Wills provide for an equal split between each side of their respective families.
They wish to appoint two executors, one from each side of the family, including Jane’s nephew who resides in the UK.
Greg and Jane realise that when one of them passes away, the survivor has the ability to change their Will and potentially exclude the other’s side of the family. They are not concerned about this risk.
They are however concerned about appointing a foreign executor. There is nothing prohibiting the appointment of a non-Australian executor. It is possible for a solicitor to prepare the necessary paperwork and post it overseas for execution. Estate funds can be transferred into the solicitor’s trust account and distributed upon receiving the written authority from both executors.
There may however, be logistical difficulties in dealing with household chattels and the sale of real estate, although the “local” executor can attend these practicalities.
Greg and Jane also have a substantial amount of super. Their super is dealt with by way of a binding death benefit nomination. Nominations that name their siblings are not valid because they are not “dependents”. The nomination should therefore record their “legal personal representative” as the recipient of their super, so that it forms an asset of their estate and ultimately flows to the beneficiaries named in their Wills.
Thank you to J&G for suggesting this hypothetical.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
