International Estate Planning: Avoiding International Probate in the U.S.

Ancillary Probate

Ancillary probate arises when multiple probate proceedings occur across multiple jurisdictions.  This becomes necessary when a person owns property in a different state or country than where he died.  When a person dies, the real estate and other property that is physically in a state is under the jurisdiction of that state.①

International Wills②

· The Uniform International Will Act was enacted in Washington DC under the UNIDROIT convention (1973) for the purpose of creating an International Will that would make estate planning with international ramifications more straightforward, and without revoking or interfering with local sovereignties.

· Certain requirements must be met for an International Will to be effective, including, for example, the following:

o the will must be for only one person (no joint wills);

o the will must be in writing but may be in any language;

o the will must be witnessed and signed by two witnesses and an attorney (a notary is not sufficient);

o all signatures must be at the end of the will;

o if the will is more than one page, each page must be numbered and must be signed on each page;

o if the testator is unable to sign, the reason must be clearly noted in the will;

o a certificate must be attached to the end of the will, signed by an attorney, attesting that the requirements and procedures for drafting and execution have been satisfied.

· Benefit: When properly drafted, the will is valid in any jurisdiction that has signed or enacted the Uniform International Wills Act.

Multiple Wills or Supplemental Wills

· In order to secure the property that is in another jurisdiction, a foreign lawyer may advise a person to make multiple wills for different jurisdictions.  However, if this route is taken, it must be done so carefully because a will may cause another one to be revoked.  Rather than having this attempt foiled, a person may wish to hire two different lawyers in the different jurisdictions to work together to draft multiple wills.

· Alternatively, a supplemental will may cover the property that is only in a different jurisdiction. This may serve as a codicil to the first will.  Each will should refer to the other will without using any language to revoke the sustainability of either will.  

· If neither will discusses the foreign property, this may be considered part of the residuary estate and may be disposed of according to that particular provision.  If there is not any discussion of the residue of the estate, the laws of intestacy will dictate how the property is disposed of.  If there are two wills that are concurrent, the different countries may have different outcomes when it concerns laws of intestacy.

Property Held in Joint Tenancy or Tenancy by the Entirety

· A surviving co-owner of any property held in joint tenancy will be able to take the decedent’s share of the property without putting the property through probate.

· However, there may be unintended tax consequences arising from this method of estate planning.③

Trusts

· Potential issues: Most countries don’t recognize U.S. trusts.④

· Possible work-arounds:

o Transfer overseas property into a locally-recognized entity (e.g., Mexican Land Trust in Mexico, Société Civile Immobiliere in France).⑤

o Create holding entity in the foreign country and transfer the property into this new company; you may then transfer ownership shares into your U.S. trust.⑥

 ①https://www.hg.org/legal-articles/estate-planning-when-you-own-property-in-other-countries-42555 

 ②https://www.davidtanzer.com/Past-Articles/international-wills-trusts#:~:text=When%20individuals%20reside%20in%20one,consequences%20if%20you%20pass%20away.&text=For%20example%2C%20a%20U.S.%20Will,laws%20of%20the%20foreign%20jurisdiction. 

 ③See e.g., https://us-tax.org/2019/01/03/a-big-mistake-joint-ownership-of-assets-with-your-non-us-citizen-spouse/ (if a property is jointly held between a US-citizen and non-US citizen); https://www.mondaq.com/canada/landlord-tenant--leases/1072004/joint-tenants-beware-when-foreign-buyers-tax-outlives-you- (foreign tax consequences for property owners who are not Canadian citizens or permanent residents);

④https://www.barrons.com/articles/avoiding-the-pitfalls-of-overseas-property-1495042691; see also https://www.stimmel-law.com/en/articles/foreign-real-property-assets-united-states-trust-issues-and-solutions 

 ⑤https://www.barrons.com/articles/avoiding-the-pitfalls-of-overseas-property-1495042691

 ⑥Id.