Wills and power of attorney when you live abroad

When you live in one country and own things in another, two legal systems both get a say in what happens if you die or lose capacity. A bit of planning now saves your family a very expensive puzzle later.

The short version

Land is generally dealt with under the law of the country where it sits. Movable assets, like bank accounts and shares, generally follow the law of where you were domiciled when you died [1][2].
Many lawyers recommend a separate will in each country where you have significant assets, drafted so neither one cancels the other [1][2].
In most of the EU, your estate is handled under the law of the country you last lived in, unless your will chooses the law of a country you're a citizen of, such as Australia [3][4].
An enduring power of attorney made overseas isn't recognised in NSW. For Australian assets, you generally need one made under Australian state or territory law [5].
Australian embassies witness signatures on Australian documents, but check the specific witnessing rules for your will or power of attorney first [6].

Why one will may not be enough

Australian succession law is state and territory based, and so is the law in many other countries. Each set of rules decides two separate questions: was the will made properly, and whose law decides who gets what?

Was the will made properly?

Australian states are fairly generous about wills signed overseas. In NSW, for example, a will is formally valid if it was executed properly under the law of one of several connections: where it was signed, where you were domiciled or resided when you signed it or when you died, or a country you were a citizen of [1][2]. Other states and territories have their own versions of these rules, so check the one that applies to you.

That helps, but proving it can still be slow and expensive. Courts have traditionally needed evidence from a foreign lawyer about the local law, and from family or friends about where you lived [1].

Whose law decides who inherits?

This is where it gets serious. The long-standing general rule in Australia is [1][2]:

Immovable property, such as land and houses, is governed by the law of the place where the property is.
Movable property, such as cash, shares and personal belongings, is governed by the law of the place you were domiciled when you died.

So, from an Australian court's point of view, your apartment in Lisbon is a matter for Portuguese law and your house in Perth is a matter for Western Australian law. The foreign country applies its own conflict rules, which may not line up neatly with ours.

Living in Europe? Know the EU Succession Regulation

If you live in an EU country, a single regulation (EU 650/2012) sets the starting point. The authority dealing with your estate, often a court or notary in the EU country where you last lived, will usually apply its own national law to your whole estate [3][4].

You can change that. The regulation lets you choose, in your will or a separate declaration, the law of a country you're a citizen of, and that can be a non-EU country such as Australia. If you hold several nationalities, you can pick any of them [3][4]. The choice has to be explicit [3].

Some important limits [3]:

The regulation does not apply in Denmark and Ireland, and authorities there may not take your choice into account.
Authorities can refuse parts of the chosen law that clash with local public policy.
It doesn't cover inheritance taxes, the property regime of your marriage, or company matters.

The national law that ends up applying decides things such as whether children are entitled to a reserved share, and whether you can leave a family member out [3]. That can be a big change for Australians, who are used to more freedom over who inherits.

One will or two? Your options compared

Approach	How it works	Suits	Watch out for
One Australian will	A single will covering everything	Almost everything is in Australia	Foreign assets may need slow, costly proof of the will overseas [1]
One will per country	Separate wills, each limited to assets in that country	Real estate or significant assets in two places	Each will must not revoke the other; get the clauses drafted together [1][2]
International will	A will in the form set by an international convention, recognised in member countries	Mostly Australian assets, with a small foreign bank balance	Only helps with formal validity, not who inherits, and only in member countries [1][2]

Australia joined the convention on international wills in 2015, and each state has passed laws to give effect to it [1]. In NSW, an international will must be declared before two witnesses and an authorised person, such as an Australian legal practitioner or notary [2]. Lawyers writing on the topic generally see it as a niche option rather than a replacement for local wills [1][2].

The revocation trap

Most standard wills start with a line revoking all previous wills. If you sign a new Australian will that says that, it can wipe out the will you signed in Singapore last year, and vice versa. When you have two wills, each one should say clearly which assets it covers and that it doesn't revoke the other. This is exactly why the two should be drafted with each other in mind.

Enduring power of attorney: someone to sign for you

A will only works once you've died. An enduring power of attorney (EPOA) covers the other risk: losing the capacity to make decisions while you're still alive.

In NSW, an EPOA lets you appoint someone to make legal and financial decisions for you, and it keeps working even if you lose capacity. It ends when you die, and your will takes over. It doesn't cover health or lifestyle decisions; those need a separate appointment, an enduring guardian [5]. Other states use their own forms and names.

Why it matters more when you're abroad

Even with full capacity, being on the other side of the world makes it hard to sign a lease renewal, deal with a tenant, sell a car or answer your bank. A trusted attorney in Australia can do that for you. If you own property, they may need to deal with the land registry: in NSW, an EPOA must be registered with NSW Land Registry Services if your attorney will deal with your NSW real estate [5].

Which country's power of attorney?

Plan on needing one for each system:

For Australian assets: NSW doesn't recognise an EPOA made overseas [5]. States do generally recognise each other's EPOAs if they were validly made where they were signed, but Western Australia requires an application to its State Administrative Tribunal first [7]. Make your Australian EPOA in the state where your main assets are.
For assets where you live: your Australian EPOA may not be accepted by a foreign bank or land registry. Ask a local lawyer about the local equivalent, which might be a notarial power of attorney or a lasting power of attorney.

Signing and witnessing from overseas

Witnessing rules are strict and vary between documents and states. Get them wrong and the document may be invalid.

Check who can witness. In NSW, an EPOA must be witnessed by one of a short list of people. It includes a solicitor or barrister, a Local Court registrar, and a legal practitioner qualified in a country other than Australia [5]. Other states have different lists.
Check the will rules for your state. Wills have their own signing and witnessing formalities, and they differ from EPOA rules. As a rule of thumb, avoid using anyone who benefits under the will as a witness, and let your lawyer confirm what your state requires.
Use the embassy where it fits. Australian embassies and consulates can witness signatures on Australian documents, certify copies and witness Australian statutory declarations for use in Australia, for a fee [6]. They don't give legal advice, so confirm the document can be witnessed that way before you book. DFAT's legalisation team can advise on specific documents [6].
Get documents legalised if needed. If an Australian document needs to be used overseas, DFAT can issue an apostille or authentication certificate for certain documents, including copies notarised by an Australian notary public [6].
Store the originals safely and tell your executor and attorney where they are.

A practical plan

List your assets by country: property, bank accounts, super, shares, cars.
See an Australian lawyer about your Australian will and EPOA, and a local lawyer about local documents. Ask them to talk to each other.
If you live in the EU, decide whether to choose Australian law in your will.
Update beneficiary nominations on your super, which sits outside your will.
Review everything after a marriage, divorce, new child, property purchase or another move.

Wills and power of attorney abroad: who decides when you can't