Does an expat need an international Will?

The answer seems obvious. As an expat you have international connections, parents who live ‘at home’, you will inherit property and savings from them, you buy a holiday flat in Spain or Portugal, your children study in the UK, they meet a partner from India there, and then go and live in France …

It seems obvious: you need an international will because … that will deal with all these international aspects.

However, an international Will is a bit of a misnomer …

Wills under Belgian law.

The Belgian civil code has three forms of Wills and even if you are not a Belgian, you can opt for one of these Wills.

• You can write your Will out completely by hand. A ‘handwritten Will’ is the easiest and cheapest way of drafting a Will. To be valid, it must be completely written out in longhand, dated and signed. It does not need to be witnessed.

• A notarized Will is a Will you (supposedly) dictate to a notary who types it up as you dictate it, even in English, but he drafts it in French or Dutch. In practice, you have a meeting with the notary to explain what you want to see in it and you go back to sign it. There are no witnesses to a notarized Will.

• The international Will is a Will that you type out or write out in longhand and present to the notary in an envelope. The notary will not read the Will, he may have a look at it to see if it is more or less correct and he will ask you to confirm that this is your will. He will then attach the envelope with the Will to a notarised deed. This is done in front of two witnesses who are usually called up by the notary; they must not be family members.

Any Will can always be modified by a later Will, whatever the form. E.g. a notarized Will can be revoked in a handwritten Will.

The notary will report to the Central Register of Wills that he holds a notarized Will or an International Will. Upon death, a search in the register will give a list of all recorded Wills and marriage contracts.

The International Will

An international will is a will under Belgian law drafted in accordance with the Washington Convention of 1973 providing a uniform law on the form of an international will. This means that the international will can be a typed document in English or in German that is put in an envelope and given for safekeeping to a notary.

The interesting part about an International Will is that it will be recognised as a valid form of a Will when it is to be used in another country. However, not all countries have ratified the Washington Convention (see the current status). What is more, the Washington Convention does not deal with the content of the Will.

In fact, EU Succession Regulation (EU) No 650/2012 deals with the form of the Will as well and that regulation covers 25 EU Member States: a will that is valid in one of these countries is valid in all 25. This means that the EU Succession Regulation makes International Wills is valid in all EU Member States (Denmark and Ireland opted out).

The EU Succession Regulation also deals with the content of the Will, and it even allows you to opt for the inheritance rules of the country of your nationality. A German national can opt for German law to govern his estate, but then the German rules come in to play even in Belgium.

And if you have properties or bank accounts in other countries, a Belgian Will, even a international Will has to deal with the rules in these countries. These will determine how assets are transferred to the beneficiaries (automatically by law or via probate), for paying inheritance tax, etc.

When drawing up a Will, it is, therefore, important to determine where it will need to be used : will it be accepted there and will it be effective?

Making a will is only part of all estate planning. It helps you determine who receives what, but it does not help save on inheritance tax. In some countries, the beneficiaries must pay inheritance tax when they receive an inheritance, etc … In some situations, planning with gifts can get around these issues.