A US Will Under Foreign Laws: Legalities & logistics - Werner Law Firm

Legalities of a U.S. Will Under Foreign Laws

The specifications surrounding the legalities of a U.S. will under foreign laws can become quite complicated. Some jurisdictions will accept a verbal will, some will not. Some jurisdictions require a notarized stamp, others will recognize the simple signature of the grantor.

In the United States, the laws regarding the validity of a will can even vary between states. How much more might they vary from country to country?

This aspect of estate planning is an important area to do your homework in, particularly if you own assets abroad; have beneficiaries in another country; or have resettled in a nation other than that of your origin. Most will want to consider hiring an attorney who specializes in this area, in order to ensure that all of the unique aspects which can arise are adequately covered.

The following are some of the highlights of difficulties between construction of wills within the United states, versus their construction – and their executions – elsewhere.

Errors in Translation

The most basic of problems with executing a will in a foreign country is that of our intentions being misunderstood. Whenever our documents are subject to the scrutiny of a foreign court, the documents will need to be translated into the language of such court.

In some jurisdictions, the intent of the original language can be defended. However, in others, the document that ends up after being translated is the final authority. In the case that your will faces the possibility of being translated into another language, it is advised to seek a specialist to complete the task.

Forced Heirship

Most states in our nation – with the exception of Louisiana – allow for a person to do whatever one wishes with his or her assets. If we don’t want to leave any inheritance to our direct descendants, that is our right.

Many other countries disagree with this perspective, and hold to the idea that we are morally responsible for providing for our offspring – and sometimes even parents and extended family members – regardless of our desires. These countries practice forced heirship.

What this means is that, in spite of our best efforts to direct our goods to whom we intend, the nation where the property is being distributed may simply declare that the specifications in our will are invalid. This is most often only applied in situations where we have drafted a will as a national, and in a country which imposes the practice. Foreigners who draft a will in such countries will usually avoid having this rule imposed upon them.

Double Taxation

When leaving behind considerable assets, those who are named as beneficiaries may be liable for paying an estate tax. The value of assets which can be transferred before taxes changes periodically, but anything over the set amount for such year will be subject to a tax. These estate taxes can vary, depending on the location.

In some states, beneficiaries may pay taxes on every dollar that is bequeathed. In other states, certain individuals may get away with paying nothing.

Unless an American person’s foreign assets happen to be in one of the reciprocal nations – of which there are currently 15  – the property may be taxed, again, by the second nation. Depending on the particular location of the asset, the estate tax rules may demand that the higher of the two nation’s tax rates be paid.

Other nations have decided that the location of the property will determine the subsequent taxation.

Creating a Second Will

In an attempt to address the differences between to the laws of two, separate, nations, some will decide to draft a will for each location.  In order for this to work, each will needs to specifically address the details contained in the other will, and specify that both wills are to be considered valid.

Otherwise, the will that is created secondly will be considered as replacing the first, which is not often what is wanted in these situations. The requirements for creating the document as outlined in each, unique, country will need to be carefully considered.

Even if another will is, indeed, crafted for the purpose of replacing the first will, things can still go wrong. In the case of drafting a will while living abroad, for instance, relatives remaining in our country of origin can assert that it doesn’t apply. This is what happened in one recent case, resulting in the subsequent will being declared invalid.

Wills that are created according to specifications in other countries may not stand up to the scrutiny of U.S. courts. The beneficiaries named in the first will were able to assure that the woman’s second, foreign, document was thrown out.

Resealing the Will

In several cases where the U.S. will names property that is located in another country, the document will need to undergo a process known as resealing. This is largely an administrative formality, as it is the process of the foreign courts approaching the will as though its execution is being completed for the first time.

No details of the will are allowed to be altered at this time, including the named executor. This detail may require that your executor make some extensive travel plans, which is something to consider when planning for your estate.

In the case that some time has passed between the death and the resealing process, there may also be difficulties involving providing proof of death of any other persons named in the will.

In Canada, for instance, the executor of Canadian property named in a foreign will must be officially recognized by the Canadian government before the contents of the will can even begin to be examined. After such recognition is obtained, the process of determining taxes begins. Reading more about this process reveals how complicated the matter can become.

There are situations where the contents of the foreign document will be accepted at face value, and situations where it won’t. For best results, consult with an attorney who is skilled in foreign estate laws when crafting the contents of your will.

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