If you live a global lifestyle, then planning your estate has an added layer of intricacy that requires careful planning. Not only do you want to have a solid Estate Plan in place, you’ll want to ensure that your strategy will be effective based on where you and your assets will be located at the time of your passing. Further, you’ll need to understand what the probate process looks like for international assets. You may be wondering if such a thing as international probate exists to make your and your loved ones’ lives easier. Trust & Will explores how probate works for someone with an international lifestyle and how to begin planning your cross-border Estate Plan.
Cross-border estate definition
If you fit the description above, then you’re likely wondering what your Estate Plan should look like to meet your circumstances. For someone like you, we have on our hands what we would call a “cross-border estate.”
A cross-border estate is one that is comprised of assets that are located in more than one jurisdiction. For example, let’s say that you spent some of your adult life in the U.S. but later relocated to Australia for business. Eventually, you meet your significant other “down under” and establish a life there. Perhaps you even invest in a vacation home in Bali, which you can get to easily from Australia.
This means that you, as a U.S. citizen, have a cross-border estate with assets in multiple jurisdictions: U.S., Australia, Bali.
This type of estate is getting increasingly common due to general economic globalization, and more specifically, remote work allowing more people to work abroad. However, this creates a catch, which is the matter of creating your Estate Plan with your international lifestyle in mind.
Is there an international probate system?
Here, you may be wondering if there is such a thing as an international probate system. The world is increasingly internationalized, it would make things much easier if there was a “one-and-done” system for probating assets, wouldn’t it?
Unfortunately, there is no such thing as a uniform probate system that reaches across borders. The laws governing the administration of assets after death vary from country to country. This means that every estate owning foreign assets will be dealing with the laws of different countries, thus creating different unique circumstances. Further, this means that your cross-border estate planning strategy will look different from another individual’s cross-border estate planning strategy. In most cases, professional support will be helpful and worthwhile in these unique circumstances.
Determining which country’s laws to apply
If you have an international estate on your hands, then there are several factors to determine before you can begin the probate process:
Decedent’s Location of Death
Decedent’s Estate Plan
Moveability of Foreign Assets
1. Decedent’s location of death
The first factor to determine is the decedent’s location at the time of their death. More specifically, their domicile, which is where they established permanent residency. This does not have to do with citizenship or nationality and is more about where they spent the majority of their life.
The decedent’s domicile matters because it impacts the status of their estate and how it is treated for tax and probate purposes.
Examples of ways to determine domicile is where they received mail, where they were registered to vote (for citizens), the address they used to register for health care, and so on and so forth. (You can read more about how to determine a domicile versus a residence here.)
2. Decedent’s estate plan
Next, find out whether the decedent had an Estate Plan in place, and what documents it may have contained.
For instance, did the decedent leave behind a Will? If yes, it is a vital document that is used as a part of the probate process. If the decedent planned proactively, then there should be some instructions regarding what to do with their foreign assets. Locating the Will can be tricky in an international setting. Assuming you are the decedent’s surviving spouse or adult child and you do not already know the Will’s location or if it exists, check by searching your loved one’s documents and belongings, as well as with their attorney if they worked with one. If you are another interested party in the estate, it could be a matter of time before the Executor of the estate contacts you regarding the details of the estate and the probate process.
If the decedent moved their assets into a Trust, then you may be in some luck. Trusts are a powerful estate planning tool that allow an individual to move assets out of their personal estate and into a fiduciary arrangement. Similar to a Will, the terms of a Trust often include instructions regarding the distribution of assets to beneficiaries. Further, because the assets are no longer part of the decedent’s individual estate, Trust assets can be distributed outside of the probate process. If you find a Trust document within the decedent’s Estate Plan, then chances are, some assets can be transferred to their beneficiary or beneficiaries more easily by bypassing probate.
Finally, it is important to find out the fiduciary role(s) that the decedent may have named. These include the Executor, Trustee, Health Care Proxy, and Power of Attorney named in the Will, Trust, Advance Directive and Power Attorney documents, respectively. These documents legally name another individual or entity to act on behalf of the individual in the event that they pass away or are declared medically incapacitated. These roles allow the proxies to attend to urgent matters without much red tape, so to speak. For instance, the Executor is typically authorized to file for probate and distribute estate assets, while a Trustee acts on behalf of the Trust. A health care proxy makes medical decisions on behalf of the individual, and a Power of Attorney can attend to the individual’s personal and business affairs.
In the event of death, it is particularly important to find out if an Executor was named, as this is the individual or entity that is responsible for filing for probate, even if it is from abroad.
3. Moveability of foreign assets
Last but not least, determine whether any foreign assets are moveable or immovable.
An example of a moveable asset is the money kept in a checking account. This money can be transferred from a bank in one country to that of another. For instance, you can move your money in a French bank account to your U.S. bank account via wire transfer relatively easily.
An immovable asset is one that cannot be moved or transferred and has to remain in the foreign country of residence. Land or property are great examples of this.
The difference between moveable and immovable assets matters because it can determine which country’s laws to apply with regards to probate. In most cases, moveable assets are treated using the laws of the decedent’s domicile, while immovable assets are dealt with using the laws of the country in which they’re physically located.
How to apply for U.S. probate from abroad
If the decedent owned any assets in the U.S. that were not transferred to a Trust, then those assets likely must be probated. If you are located abroad but need to apply for U.S. probate, then this may pose a challenge. For example, perhaps you and your partner were American expats living in New Zealand, but your partner passes away. Not only did he own separate property in the U.S., you have adult children who are beneficiaries in the U.S. as well. You are your surviving spouse’s estate Executor and thus must take action accordingly.
While the exact steps will be determined by your unique circumstances, here are some general tips on applying for probate from abroad:
1. Consult a professional: Seek professional support regarding probate law in the relevant U.S. state. They can guide you through the process and provide specific advice based on your situation.
2. Gather necessary documents: Collect all relevant documents related to the deceased person's estate, such as the Will, death certificate, and any other supporting documentation. You may need to work with local authorities or the U.S. embassy or consulate to obtain these documents.
3. Determine the probate jurisdiction: Probate jurisdiction is typically determined by the deceased person's last residence or the location of their assets. This is where the probate petition and related documents should be filed.
4. Appoint a personal representative: In the United States, a personal representative, often called an Executor or Administrator, is appointed to oversee the probate process. If you are residing abroad, you may need to appoint a representative who is physically present in the United States. If you are the named Executor of the estate, then the individual representing you should be appointed as your agent or proxy via Power of Attorney.
5. Prepare and file the necessary documents: Prepare the required probate documents, including the probate petition and supporting documentation. These documents will need to be filed with the appropriate probate court. If you are unable to be physically present for the court proceedings, your Power of Attorney can represent you.
6. Attend hearings or appoint a representative: Depending on the circumstances, you may need to travel to attend probate hearings in person or have a representative appear on your behalf.
7. Administer the estate: Once the probate process begins, the personal representative will be responsible for managing the deceased person's estate, including gathering assets, paying debts and taxes, and distributing the remaining assets according to the will or state law.
Remember, this is a general overview, and the actual process can vary based on state laws and individual circumstances. Consulting a professional will help ensure that you follow the correct procedures and fulfill your responsibilities as an Executor or Administrator.
Can you apply for probate online?
If you’re living abroad, then you may have the very practical question of whether or not you can apply for probate online. Theoretically speaking, you would file all documents online and attend hearings remotely.
The ability to apply for U.S. probate remotely varies depending on the state and the specific court handling the probate case. While some courts may offer online filing systems or accept electronic submissions, others may still require physical filing of documents. It's essential to consult the probate court in the relevant jurisdiction to determine the available methods for applying for probate.
Many courts have been moving towards digitalization and offering online services to make the probate process more accessible and convenient. Some states have implemented e-filing systems or online portals where you can submit documents and track the progress of your case. These systems may require registration and may have specific requirements for document formats or payment methods.
To determine if online filing is an option, you can visit the website of the probate court in the relevant jurisdiction or contact their office directly. They should be able to provide you with information about their filing procedures, including any online filing options that may be available.
Remember that even if online filing is an option, certain documents may still require physical submission, such as original Wills and other notarized documents. Further, the physical attendance of either yourself or a Personal Representative may be required. It is best to consult the probate court located in the jurisdiction in which any assets are located, whether they are in the U.S. or the foreign country where you are domiciled.
Can the government help?
As an American living abroad, there are often instances where the U.S. Embassy or Consulate can assist you in a number of matters.
According to the State Department, a U.S. Consular officer may provide some assistance when a citizen passes away in a foreign country. For example, they will attempt to notify their next of kin or legal representative. They may in some cases also assist in the transfer of the decedent’s personal effects. While they can legally act as a temporary Conservator, the Consular is not a Power of Attorney, meaning that there are limits to what they can and cannot do. Learn more on the State Department website here.
Probate support available, no matter your location
Planning for probate as a global citizen can be hard. Owning assets in multiple locations can create challenges, especially since there is no such thing as a uniform probate law across borders or an international probate system.
If you plan to reside in a foreign country, it is very important to think ahead about what should happen to your estate should you pass away in said foreign country. While estate planning is important for everyone, it becomes even more critical in your case. It is recommended that you make things easier for your loved ones by making arrangements for your assets and appointing fiduciaries such as an Executor and Power of Attorney who can act on your behalf in the U.S.
Last but not least, know that probate support is available. You can access Trust & Will’s Probate, no matter your location. This is our tool that will help you navigate the probate process with confidence, whether you might be looking for some self-navigated tools or personalized assistance from an experienced attorney. Whatever you might need, we have something to offer. Check out Probate today.
Further, know that we offer many resources regarding your cross-border estate. For starters, check out our guide on International Estate Planning.
Is there a question here we didn’t answer? Reach out to us today or chat with a live member support representative!
If you live a global lifestyle, then planning your estate has an added layer of intricacy that requires careful planning. Not only do you want to have a solid Estate Plan in place, you’ll want to ensure that your strategy will be effective based on where you and your assets will be located at the time of your passing. Further, you’ll need to understand what the probate process looks like for international assets. You may be wondering if such a thing as international probate exists to make your and your loved ones’ lives easier. Trust & Will explores how probate works for someone with an international lifestyle and how to begin planning your cross-border Estate Plan.
Cross-border estate definition
If you fit the description above, then you’re likely wondering what your Estate Plan should look like to meet your circumstances. For someone like you, we have on our hands what we would call a “cross-border estate.”
A cross-border estate is one that is comprised of assets that are located in more than one jurisdiction. For example, let’s say that you spent some of your adult life in the U.S. but later relocated to Australia for business. Eventually, you meet your significant other “down under” and establish a life there. Perhaps you even invest in a vacation home in Bali, which you can get to easily from Australia.
This means that you, as a U.S. citizen, have a cross-border estate with assets in multiple jurisdictions: U.S., Australia, Bali.
This type of estate is getting increasingly common due to general economic globalization, and more specifically, remote work allowing more people to work abroad. However, this creates a catch, which is the matter of creating your Estate Plan with your international lifestyle in mind.
Is there an international probate system?
Here, you may be wondering if there is such a thing as an international probate system. The world is increasingly internationalized, it would make things much easier if there was a “one-and-done” system for probating assets, wouldn’t it?
Unfortunately, there is no such thing as a uniform probate system that reaches across borders. The laws governing the administration of assets after death vary from country to country. This means that every estate owning foreign assets will be dealing with the laws of different countries, thus creating different unique circumstances. Further, this means that your cross-border estate planning strategy will look different from another individual’s cross-border estate planning strategy. In most cases, professional support will be helpful and worthwhile in these unique circumstances.
Determining which country’s laws to apply
If you have an international estate on your hands, then there are several factors to determine before you can begin the probate process:
Decedent’s Location of Death
Decedent’s Estate Plan
Moveability of Foreign Assets
1. Decedent’s location of death
The first factor to determine is the decedent’s location at the time of their death. More specifically, their domicile, which is where they established permanent residency. This does not have to do with citizenship or nationality and is more about where they spent the majority of their life.
The decedent’s domicile matters because it impacts the status of their estate and how it is treated for tax and probate purposes.
Examples of ways to determine domicile is where they received mail, where they were registered to vote (for citizens), the address they used to register for health care, and so on and so forth. (You can read more about how to determine a domicile versus a residence here.)
2. Decedent’s estate plan
Next, find out whether the decedent had an Estate Plan in place, and what documents it may have contained.
For instance, did the decedent leave behind a Will? If yes, it is a vital document that is used as a part of the probate process. If the decedent planned proactively, then there should be some instructions regarding what to do with their foreign assets. Locating the Will can be tricky in an international setting. Assuming you are the decedent’s surviving spouse or adult child and you do not already know the Will’s location or if it exists, check by searching your loved one’s documents and belongings, as well as with their attorney if they worked with one. If you are another interested party in the estate, it could be a matter of time before the Executor of the estate contacts you regarding the details of the estate and the probate process.
If the decedent moved their assets into a Trust, then you may be in some luck. Trusts are a powerful estate planning tool that allow an individual to move assets out of their personal estate and into a fiduciary arrangement. Similar to a Will, the terms of a Trust often include instructions regarding the distribution of assets to beneficiaries. Further, because the assets are no longer part of the decedent’s individual estate, Trust assets can be distributed outside of the probate process. If you find a Trust document within the decedent’s Estate Plan, then chances are, some assets can be transferred to their beneficiary or beneficiaries more easily by bypassing probate.
Finally, it is important to find out the fiduciary role(s) that the decedent may have named. These include the Executor, Trustee, Health Care Proxy, and Power of Attorney named in the Will, Trust, Advance Directive and Power Attorney documents, respectively. These documents legally name another individual or entity to act on behalf of the individual in the event that they pass away or are declared medically incapacitated. These roles allow the proxies to attend to urgent matters without much red tape, so to speak. For instance, the Executor is typically authorized to file for probate and distribute estate assets, while a Trustee acts on behalf of the Trust. A health care proxy makes medical decisions on behalf of the individual, and a Power of Attorney can attend to the individual’s personal and business affairs.
In the event of death, it is particularly important to find out if an Executor was named, as this is the individual or entity that is responsible for filing for probate, even if it is from abroad.
3. Moveability of foreign assets
Last but not least, determine whether any foreign assets are moveable or immovable.
An example of a moveable asset is the money kept in a checking account. This money can be transferred from a bank in one country to that of another. For instance, you can move your money in a French bank account to your U.S. bank account via wire transfer relatively easily.
An immovable asset is one that cannot be moved or transferred and has to remain in the foreign country of residence. Land or property are great examples of this.
The difference between moveable and immovable assets matters because it can determine which country’s laws to apply with regards to probate. In most cases, moveable assets are treated using the laws of the decedent’s domicile, while immovable assets are dealt with using the laws of the country in which they’re physically located.
How to apply for U.S. probate from abroad
If the decedent owned any assets in the U.S. that were not transferred to a Trust, then those assets likely must be probated. If you are located abroad but need to apply for U.S. probate, then this may pose a challenge. For example, perhaps you and your partner were American expats living in New Zealand, but your partner passes away. Not only did he own separate property in the U.S., you have adult children who are beneficiaries in the U.S. as well. You are your surviving spouse’s estate Executor and thus must take action accordingly.
While the exact steps will be determined by your unique circumstances, here are some general tips on applying for probate from abroad:
Consult a professional: Seek professional support regarding probate law in the relevant U.S. state. They can guide you through the process and provide specific advice based on your situation.
Gather necessary documents: Collect all relevant documents related to the deceased person's estate, such as the Will, death certificate, and any other supporting documentation. You may need to work with local authorities or the U.S. embassy or consulate to obtain these documents.
Determine the probate jurisdiction: Probate jurisdiction is typically determined by the deceased person's last residence or the location of their assets. This is where the probate petition and related documents should be filed.
Appoint a personal representative: In the United States, a personal representative, often called an Executor or Administrator, is appointed to oversee the probate process. If you are residing abroad, you may need to appoint a representative who is physically present in the United States. If you are the named Executor of the estate, then the individual representing you should be appointed as your agent or proxy via Power of Attorney.
Prepare and file the necessary documents: Prepare the required probate documents, including the probate petition and supporting documentation. These documents will need to be filed with the appropriate probate court. If you are unable to be physically present for the court proceedings, your Power of Attorney can represent you.
Attend hearings or appoint a representative: Depending on the circumstances, you may need to travel to attend probate hearings in person or have a representative appear on your behalf.
Administer the estate: Once the probate process begins, the personal representative will be responsible for managing the deceased person's estate, including gathering assets, paying debts and taxes, and distributing the remaining assets according to the will or state law.
Remember, this is a general overview, and the actual process can vary based on state laws and individual circumstances. Consulting a professional will help ensure that you follow the correct procedures and fulfill your responsibilities as an Executor or Administrator.
Can you apply for probate online?
If you’re living abroad, then you may have the very practical question of whether or not you can apply for probate online. Theoretically speaking, you would file all documents online and attend hearings remotely.
The ability to apply for U.S. probate remotely varies depending on the state and the specific court handling the probate case. While some courts may offer online filing systems or accept electronic submissions, others may still require physical filing of documents. It's essential to consult the probate court in the relevant jurisdiction to determine the available methods for applying for probate.
Many courts have been moving towards digitalization and offering online services to make the probate process more accessible and convenient. Some states have implemented e-filing systems or online portals where you can submit documents and track the progress of your case. These systems may require registration and may have specific requirements for document formats or payment methods.
To determine if online filing is an option, you can visit the website of the probate court in the relevant jurisdiction or contact their office directly. They should be able to provide you with information about their filing procedures, including any online filing options that may be available.
Remember that even if online filing is an option, certain documents may still require physical submission, such as original Wills and other notarized documents. Further, the physical attendance of either yourself or a Personal Representative may be required. It is best to consult the probate court located in the jurisdiction in which any assets are located, whether they are in the U.S. or the foreign country where you are domiciled.
Can the government help?
As an American living abroad, there are often instances where the U.S. Embassy or Consulate can assist you in a number of matters.
According to the State Department, a U.S. Consular officer may provide some assistance when a citizen passes away in a foreign country. For example, they will attempt to notify their next of kin or legal representative. They may in some cases also assist in the transfer of the decedent’s personal effects. While they can legally act as a temporary Conservator, the Consular is not a Power of Attorney, meaning that there are limits to what they can and cannot do. Learn more on the State Department website here.
Probate support available, no matter your location
Planning for probate as a global citizen can be hard. Owning assets in multiple locations can create challenges, especially since there is no such thing as a uniform probate law across borders or an international probate system.
If you plan to reside in a foreign country, it is very important to think ahead about what should happen to your estate should you pass away in said foreign country. While estate planning is important for everyone, it becomes even more critical in your case. It is recommended that you make things easier for your loved ones by making arrangements for your assets and appointing fiduciaries such as an Executor and Power of Attorney who can act on your behalf in the U.S.
Last but not least, know that probate support is available. You can access Trust & Will’s Probate, no matter your location. This is our tool that will help you navigate the probate process with confidence, whether you might be looking for some self-navigated tools or personalized assistance from an experienced attorney. Whatever you might need, we have something to offer. Check out Probate today.
Further, know that we offer many resources regarding your cross-border estate. For starters, check out our guide on International Estate Planning.
Is there a question here we didn’t answer? Reach out to us today or chat with a live member support representative!
Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
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