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For Estate Planning, Estate Administration And Disputes

Is my US will valid in foreign countries?

| Jan 4, 2021 | Estate Planning |

If you own foreign assets, have family abroad, live outside the US or have any reason to believe that your estate will span national borders, planning your estate can be intimidating. 

Since most New Yorkers use a will as an estate planning tool, understanding how other countries may perceive your will can save your family from estate litigation, heavy taxation, lost inheritance and other hardships. 

Inheritance rights, succession and valid will laws

As the American Bar Association explains, each state has laws governing standard succession for descendants, and most states include certain inheritance rights. For instance, New York directs that unless your will dictates otherwise, your estate will fall first to any current spouse, then to any children. If you have neither, it will proceed to any parents, then to any siblings, then to the nearest living relative. 

New York also prohibits testators from disinheriting spouses in their wills, and most other states have similar prohibitions, with some including minor children among those with a right to inheritance. It is essential to understand not only relevant state laws but also any relevant foreign laws about inheritance rights and succession to avoid an invalid will. 

Similarly, each state has requirements about the creation of a will. For example, many states require that two witnesses sign your will while others require notarization. Similarly, foreign countries each have their own requirements. Executing a will that does not take relevant laws into account could render it invalid. 

Will cancellation

Many testators conclude that their best option is to have a legal professional from the relevant foreign country draft a secondary will. This can sometimes be a useful method of distributing assets, but this can also result in leaving two valid wills that cancel one another out. 

Because of this, it is essential to consult with an expert who understands both US will laws, the relevant laws from the country in question and how these laws interact. The US has agreements in place with some countries to resolve estate planning, taxation and other discrepancies. With some other countries, no such agreements exist. 

International Wills

In regards to estate planning agreements with foreign countries, the International Institute for the Unification of Private Law held one Convention Providing a Uniform Law on the Form of an International Will in 1972. In other words, the US has entered into an international agreement on how testators can establish wills that are valid internationally. However, not all other countries recognize this agreement, so be certain that the foreign country you need to consider has signed this agreement before making assumptions. And be careful to ensure that your will abides by these international requirements.