Writing a will with homes in two countries

YourLifeChoices’ estate planning expert Rod Cunich receives a lot of questions about wills and, you guessed it, estate planning, Today, he answers your questions about death taxes and family obligations.

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Q. John
I have lived in the United States with my American wife (my second wife) for nine years. My children live in Australia. I own a house with my wife in the US and one in Australia. What do I need to consider when rewriting my will?

A. The US/Australia death-related tax issues are complex sadly. There is a risk that you will pay US death tax on the value of your Australian asset in addition to your US assets. It is not possible to address the issue on the information you have provided. I recommend you see a specialist estate planning lawyer who understands the complexities. At best, you will be comforted in knowing the death taxes don’t apply; at worst, you will know what taxes may apply and perhaps take steps to minimise them. 

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Q. Madge
My daughter and I haven’t spoken at all for 25 years and I’m making out my will. What are my obligations to her?

A. You have the right to decide who you leave your estate to. That said, even an estranged adult child has the right to challenge your will if he or she believes they have been unfairly treated or left out. The courts have the power to award a child part of your estate if the child satisfies the court that the will should have made provision for them. There are about 20 factors a court will examine in the process of making a determination and the outcome of this type of case is almost impossible to predict. It is a myth that making a small gift rather than no gift will help avoid a challenge. No matter what you do, there will be uncertainty so I recommend you go with what you think feels right.

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

Rod Cunich is a lawyer with over 30 years of experience who specialises in estate planning. If you have a question for Rod, simply email it to [email protected]

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