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Where there's a Will, different states have different ways

September 2005

Don't confuse interstate with intestate. Moving interstate involves more than just selling your property, cancelling the utilities and organising the forwarding address for your mail. You may well need to also change your Will. Gillian Bullock reports.

The key reason is that the laws governing your Will and power of attorney are not uniform across the country with each state having its own set of rules. However, moves are afoot to ultimately introduce uniformity.

So if you were, say, to move from NSW to Queensland and transfer all your assets there, then there might be repercussions if you don't change your Will.

Firstly, the pecking order of people who can contest your Will can differ from state to state. As a result, your original intentions may not be met in a different jurisdiction.

Secondly, the person you appointed to be the executor of your estate might also face problems if they are still living in your original state of residence. Not only may they have to wrestle with having to execute their duties from a distance, but they may also find themselves working with an unfamiliar jurisdiction.

Peter Whitehead, the NSW Public Trustee, says it is always wise to have your executor in the same state as the majority of your assets.

"It's fairly straightforward to act in more than one jurisdiction but it is time consuming as you have to effectively apply for probate in each state," says Whitehead.

If you sell up and move interstate and you have specifically gifted this home in your Will, then this can create an inheritance problem if you no longer own the property at that specific address.

"This gift will fail as the property is no longer part of your estate," says Whitehead.

There are also issues with powers of attorney. Moving interstate can impact on the person you have appointed as attorney.

"It's always a good idea to have an attorney who lives close by rather than one who is interstate if they are going to act on your behalf," says Whitehead.

But at least with a power of attorney, all states and territories, except South Australia and Tasmania, have the power to recognise powers of attorney made in other jurisdictions.

Estate planning should always be addressed when there is a major change to your life. Moving interstate is one of those instances.

Public Trustee NSW is sponsoring Good Will Week from October 10 to October 16. Call 1800 814 208 for further information.