If you have assets in multiple states across Australia, do you need a Will and Power of Attorney drafted in each state?

Wills

The laws covering Wills in Australia are regulated on a state by state basis meaning that each state has their own legislation governing Wills.

Despite each state in Australia having their own laws on Wills, the legal requirements for a valid Will are consistent across the states. This means that generally a person will only need one Will, and usually this Will is made in the state where most of their assets are located.

Upon a person passing away, the executor of the person’s Will is responsible for applying for a Grant Probate in one state (usually where most of the assets are located). Once a Grant of Probate is obtained, the executor is then able to apply for what is called a “Reseal of Probate” in each other state where the deceased person held assets.

The Reseal of Probate is a much simpler process than the executor having to apply for a Grant of Probate in each state. The courts in each other state can simply approve the Grant of Probate already made in one state thereby saving the executor time and money.

Under special circumstances a person may put in place more than one Will to cover assets in different locations. However caution should be taken to ensure multiple Wills do not cause confusion for your executors or that one Will does not revoke the other.

Power of Attorney

While a Will covers what will happen to your assets when you pass away, a Power of Attorney covers who will manage your assets during your lifetime if you are not able to, for example due to a loss of mental capacity.

The laws covering Powers of Attorney in Australia are regulated on a state by state basis. However in contrast to the requirements for Wills, the laws governing Powers of Attorney may differ between states.

Some states recognise a Power of Attorney made in one state as valid in their own state but only so far as it is consistent with the laws of that state. This means that some clauses of the Power of Attorney may be deemed invalid in one state which could have unintended consequences in the operation of the document.

To overcome this, you can put in a place a Power of Attorney in each Australian state that you own assets. This will ensure that all of your assets are appropriately covered by a valid Power of Attorney in each state.

If you hold assets in more than one state, it is important to get legal advice about how to appropriately cover all of your assets.

If you have any questions or should you need any assistance, please do not hesitate to contact us at Southern Waters Legal.

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