TRANSCRIPT: Are you prepared to die as an Expat? Wills, Living Wills and Power of Attorney.

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TRANSCRIPT:

Ryan: Bruce, thank you very much for joining us today and for taking the time out of your busy schedule to come and chat to us.

Bruce: Thanks a lot Ryan. I’m happy to be here.

Ryan: You’ve been working with expats in Southeast Asia for quite a number of years now as a lawyer. Can you give us the main rundown on what it is you do and how you help people?

Bruce: I do many things in the legal field, but one of the core areas I focus on is helping to ensure that expats in the southeast and Asia region are covered when it comes to probate matters – or what we often refer to as Wills or Last Wills and Testaments.

Ryan: What are the components that go into making a good Will?

Bruce: One of the things that we’ve found is that we have a lot of people living in this region that come from different parts of the world. Either they don’t think of having these documents, or they have them, and sometimes they’re not as sufficient as we know they need to be.

We think about the core components of what should be in a Will. In saying this, it’s important to give general information because in each jurisdiction and each country you are in, there can be specific laws. Many countries (or most countries) within this region have core elements that should be in any Will, no matter what country you’re in. Then you should look at the specific legalities of the country that you’re in.

Ryan: Do expats always need a Will in their home country, as well as the country they live in? Do you need a Will in the jurisdictions where your assets reside? Say for example if you had an account in another country but no other ties except for this investment account, do you need a Will and Testament in that country as well?

Bruce: It’s a great question. I would say that if you have substantial assets in a certain country it probably is good to have a Will in that country. However, there is a Hague convention on Wills and many countries have subscribed to it. This means that if countries are members of this convention and you have a Will in one country, they will recognise that Will in another country. It’s important to look at what country you’re in, and what country you may have substantial assets.

If you want to err on the side of caution, it may be best to have a will in each country – as long as the Wills don’t conflict. Sometimes there could be very sloppy drafting and the Will in one country will conflict with the Will in another country. That just creates a nightmare.

Ryan: I know that a large part of your job is effectively to fix a lot of the mistakes that you see. Hopefully, clients come to you before it is too late. Obviously, once you have shuffled off this mortal coil, any mistakes in your estate planning become infinitely more difficult to fix. Would that be a fair description of your job position?

Bruce: Absolutely! Often, I will say to clients (jokingly) that they shouldn’t make a Will – because it’s much more expensive to not have a Will than it is to have a Will. If a Will is done correctly (not just downloaded off the internet) and thought through with people that are legally trained – that’s really the best way to do it!

I can tell you that I spend a significant amount of time fixing Wills and documents. Often, unfortunately, after people pass away. I’m working with their family and trying to follow their intent before they died. It makes it very challenging if the Will is drafted improperly or incorrectly and that’s really sad when that happens. You may make a Will and you want your assets to go a certain way but because you just didn’t take a little extra time in ensuring that it was drafted properly… it really is the old adage that an ounce of prevention is worth much more than a pound of cure.

Ryan: Is this a scenario where you might have gone to a fantastic lawyer in your home country whether that be Australia, United Kingdom, America (or wherever you come from) and had a top-shelf Will written, then gone to another country and had a supplementary will drawn up to incorporate a new property or even something small like your favourite local charity? To have a supplementary Will override your master Will and Testament, can that ever happen?

Bruce: It happens all the time. Often, you’ll work with people in your country of origin that are good at drafting Wills but they don’t think beyond the jurisdiction of their country. They’ll often have language in the Will that says that this Will applies to all assets.

Then you’ll move to another country – maybe you’ll move to this region and draft another Will. Then you may go back to your country of origin and draft a supplemental Will in your country of origin, but you only want it to apply to those assets. The solicitor or the lawyer back home includes the wrong language that says this Will replaces all other Wills and all of a sudden you’ve got this conflict going on.

It’s important to make sure that the Will you are drafting applies specifically to your assets where you want them to apply and does not conflict with another document or instrument that you have drafted in the past, or you may draft in the future.

For instance, you may get married and in a number of jurisdictions around the world – if you get married and you have a Will – the marriage immediately invalidates a prior Will (that was made before marriage). Australia is one of those countries, so you have to be really specific. If you’re getting married and make a new Will, do you want that new Will to apply only to the country that you’re living in with your wife or do you want another one? These are all things that you must consider.

Ryan: What components – or what aspects – go together to create a good Will and Testament plan? What are the key components or the key documents you would say clients need?

Bruce: Firstly, it’s important to think about who you want to manage the Will after you die. In certain jurisdictions we call that an executor or a personal representative. You really need to pick someone who is competent and who you trust. We say someone who is usually younger than you and in better health, because you do not want that person dying before you do.

Ryan: So, like an executor, or power of attorney?

Bruce: It applies to all those other documents too. They’re people that you need to trust.

Secondly, you want to have a backup. If that person that you appoint is unable or unwilling to be the executor, you want to have someone who you can rely on in case that person can’t do it. You want to discuss the powers and what you are empowering this person to do with that person.

Too many times I’ve seen people leave someone as an executor in a Will and not discuss with them what their intent was in the Will. That’s a real punishment to the person you’re entrusting to follow out your wishes. So that’s really the first thing. You need a good executor and someone who understands what your intent is.

Next, you want to think about what assets the Will applies to and where. We mentioned that before and it’s important. If you have specific assets that you want to go to someone and you’re clear about that… this gets into what we call beneficiaries. Those are the people that you’re leaving your assets to. Some people may leave all their assets to one person or some people may decide to divide these assets up. It’s important to be as clear as possible about what you want done.

You don’t have to specifically list all your assets in the Will, because from the time you make the Will to the time you die those assets may have changed. If you want to specifically leave a particular asset – whether it’s a piece of jewellery or a mirror in your house, you want to be clear about that and be clear as to who the beneficiaries are that you want these assets to go to.

You need to envision the situation where “what happens if this beneficiary – this person who you are leaving your assets to – dies before you do?” What do you want to have happen to those assets? Do you want them to go to their heirs or do you want them to go to someone else? You could say “if this person dies, I want it to go to my other beneficiaries”. You need to be clear about that.

Ryan: So… have a good executor and be clear. Should you have a living Will and Testament as well as a final Will and Testament? What’s the difference between the two?

Bruce: They’re very different. A living Will has nothing to do with your assets. A living Will is called different things in different countries. They’re called a “do not resuscitate” among other things. Living Wills are documents referring to your medical care. They’re not about what happens to your assets when you die.

A living Will empowers someone if you’re terminal and you’re not able to communicate, or you’re brain dead and not able to communicate. It empowers another person to agree to either provide you, or not provide you, medical care that may keep you alive. That’s what a living Will is as opposed to a Will. A Will is all about your property and assets after you die. A living Will is a document that helps to protect you while you’re still alive, but allows you to die with dignity.

Ryan: Is a power of attorney an executor? Are they different? Do you need a power of attorney or will an executor do?

Bruce: A power of attorney and a Will are different. The power of attorney is similar to a living Will. A power of attorney is a document that applies while you’re alive. If you pass away – it ends. A power of attorney is a document that gives power that you have, to someone else to do things for you. It could be a limited power – it could be selling a car, it could be doing a real estate action, or it could be a general power of attorney. The power of attorney gives someone else the power to do things for you because in certain situations it may not be convenient, or you are unable to do them.

You need to be careful with a power of attorney because you need to trust the people that you give them to. But if you do have people that you trust, power of attorneys are vitally important. Especially if you become incapacitated and unable to take care of yourself. It gives someone the power to do financial transactions for you, make medical decisions for you, and other things. If given to people that you trust and who will use that power correctly, it is something that is vitally helpful for you while you are alive.

The Will again, is after you die and what happens to your intent with your assets after you pass away.

Ryan: It sounds like you are obviously across this as a topic. It’s been something that is super important for myself and for my family. It’s the core of one of those things that so many people just don’t think about or don’t put the attention in. Nobody gets up on a Saturday morning and says, “you know what I’m going to do a Will and Testament today”. It’s just one of those absolute back of the mind things.

Given that’s the case and we’re sitting here with an expert right now, maybe you could walk us through some practical examples, problems, pitfalls, and red flags you’ve seen in clients. Obviously not giving any names or any specifics, can you tell us some of the major things that people get wrong and what the outcomes of getting it wrong can sometimes mean?

Bruce: First and foremost, people will often make a Will and then they just don’t change it. It isn’t so much about the assets, but it could be because assets have changed. They have executors appointed in their Will and they have beneficiaries who (as the Will becomes old) either pass away or are no longer people they trust. It’s important to revisit the Will to ensure that the people you’ve appointed in there and bequested things to are still the people that you want them to go to.

Secondly, and I think we touched on it before, is if you’ve relocated. You may have new assets or you may need a document that just applies to assets in a certain place where you live. Even if you think you have a will, you need to revisit this to see where you are and what a previous will has said.

Ryan: Can you give us an example of where you’ve had a lot of trouble helping clients or their estates? What caused that trouble and what got them into the situation?

Bruce: I can give you an example. We have a client who had a will in two countries. They had a will in their country of origin then moved and got married. The person’s spouse died and they moved to another country, remarried, and made a Will. The assets of that Will applied to one country. The same person had bank accounts in another country but in this country the law said that if you remarry and don’t have a will, your assets in that country go under what they call their intestate law.

This was very different to the law that the person wanted. This person wanted their assets to be divided up a certain way after they died, but because they didn’t have a new will in this country where they had money in the bank the assets were divided up very differently than what the person intended. The assets still went to the people that the person wanted them to, but not necessarily in the shares that the person wanted.

I think that’s just one of many examples of Wills not following the intent of what a person wants when they’re alive and how they want their assets to be transferred.

Ryan: This becomes even more complex in jurisdictions where people have property assets because obviously there’s a whole heap of different laws. It’s a physical asset rather than something which can be liquidated and transferred.

Bruce: It’s true. Property can be incredibly complicated. If you’re an expat you may not be able to own property in a country, but your spouse can. Yet you may have a possessory interest in the property and you need to see how that passes. Some people have property with long-term leases. They don’t actually own it and in their Will they don’t actually specify how they want their possessory interest to be passed on. When they die their heirs don’t get any of this property interest.

Another area is about children. You really need to be thinking about what happens to your assets as they apply to your children. If the children are under the age of majority, who’s going to take care of those assets in a way to ensure that your children are cared for? In many countries you have trusts but some countries don’t allow trusts. You really need to be thinking about many of these issues when you are drafting these documents because it really does impact the people that you love and care for.

Ryan: Fantastic advice. Thank you very much for the time today, Bruce. We notice you’ve got a bit of a backdrop there. Do you want to give us a quick plug for the work that you’re doing at the moment?

Bruce: I sure do. In addition to being a lawyer (I’m a lawyer in the United States – I’ve been licensed in the state of Florida for many years – going on three decades), another area that I focus on is through an organisation called Babseacle. It’s a non-profit organisation and we help to strengthen and promote the idea of ‘pro bono’ and access to justice globally. Each year our organisation (with many others) helps to organise an Asian pro bono and access to justice exchange conference.

This year it will be held in Laos. It’s the 10th anniversary and we are extremely excited to see this growing movement of lawyers and others in the justice sector helping to strengthen access to justice and rule of law. This banner in the background, if you have been to Laos, you’ll recognize as the “Patuxai Monument”.

This conference will be from the 21st to the 28th of September this year [2021] – physically and virtually as need be – because of the times that we are in. We are extremely excited about it and very honoured to be a part of it.

Ryan: Thank you very much for your time, Bruce. I really appreciate it and obviously the work that you guys do for expats in the Southeast Asian region is fantastic.

Like always this is not to be taken as legal advice or financial advice. If you do need to get a Will and Testament done, please seek a lawyer who is licensed and regulated in your jurisdiction to make sure you get the outcome that you want and need.

Bruce: Absolutely. And I would say speak to more than one if you have questions. It isn’t always the cheapest one who does the best job. Just be aware of that. These are important matters and you really need to be looking at people that will be able to provide you quality services.

Ryan: Thank you very much for your time, Bruce.

Bruce: Thank you very much, Ryan.

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