Estate planning is the process of determining how to treat property upon a person’s death. This process is often complicated if a person has property in different states or countries.
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 or she died. When a person dies, the real estate and other property that is physically in a state is under the jurisdiction of that state.
There are a number of drawbacks to ancillary probate which makes people want to avoid the situation. Because there are two probate proceedings going on at the same time, the process is more expensive. A probate lawyer may need to be hired in each jurisdiction. The executor’s duties are doubled. The courts may reach contradictory results concerning the same property. Some states try to make the process easier for out-of-state executors by only requiring them to file their letters of authorization from the first state and a copy of the will.
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. 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.
United States Wills and Recognition
Some countries recognize wills that are drafted in accordance with the laws of the United States. However, for an American will to be considered valid in another country, it must usually be valid under the laws of the foreign country. However, not all countries are willing to accept the validity of American wills or will only do so under specific circumstances.
Different jurisdictions may have different laws as to the validity of wills. For example, in most states, a valid will requires the signing to be completed in front of two witnesses. Some countries may require three witnesses. Many countries do not accept a holographic will or an oral will. Some countries will not recognize provisions that will result in a spouse or child not receiving an inheritance. Some countries require another relative other than a spouse to be an heir to at least part of the property.
Another way that individuals who may have multiple jurisdictions involved in their probate proceedings approach the issue is by using an international will. International wills are generally required to only address one person, to be in writing, witnessed by two people, have the testator’s and the witnesses’ signatures at the end of the will, have numbered pages, have the testator’s signature on each page and any reason regarding the inability of the testator to sign to be noted in the will. Often, an authorized person may need to sign a certificate that is attached to the will, attesting that the requirements for the drafting and execution of the internal will have been satisfied.
These are requirements for all the countries that Washington Convention treaty, including the United states, the United Kingdom, Iran, Laos, Sierra Leone, the Russian Federation, Belgium, Bosnia-Herzegovina, Canada, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia.
There may be ways to simplify the process of handling assets in multiple jurisdictions. One way may be to put assets in a living trust, using a beneficiary deed or adding an owner with joint survivorship rights to the asset.