For many US citizens, the allure of living abroad is irresistible. It’s a journey filled with new cultures, languages, and experiences. But this exciting adventure also brings unique complexities, especially when it comes to estate planning. If you’re an American living overseas, you might wonder if the will you executed back in the States will still work for you in your new life.
The truth is, depending on your individual circumstances, your US will might still work for your overseas assets. However, chances are you’ll need to revisit your estate plan to ensure your wishes are honored and your loved ones are protected. The reality of being an expat is that your life is now a blend of the familiar and the foreign, so your estate plan needs to reflect that. Navigating this can feel overwhelming—and it is—but understanding the key issues can bring peace of mind.
This article will explore the intricacies of using a US will abroad, including its potential limitations, and how to create a comprehensive estate plan that truly reflects your global life. Note: This article does not discuss revocable trusts. If you have used a US revocable trust as part of your estate plan, and now live abroad, you should revisit the use of your trust with an advisor, because there could be negative implications.
Three Key Issues Impacting US Wills Abroad
There are three primary concerns that impact the effectiveness of a US will in a foreign country:
- Validity: Will the foreign country recognize your US will as “valid” for probate purposes?
- Recognition: Does the foreign country’s legal system recognize your right to dispose of property as you wish, as the US does?
- Practicality: Is it even practical to use one US will to govern all of your property, scattered across different jurisdictions?
Let’s break these down further.
1. Validity of Your US Will Abroad
For a foreign country to accept your US will, it must recognize it as a valid document. This means that it must meet the legal criteria of a will. To what extent the content of that will will be honored is a completely different matter. Thankfully, there are two international conventions on wills that can help. Together, they cover about 70 countries. If you live in one of these countries, your US will might work abroad, subject to limitations. If not, local laws will dictate whether your US will is accepted.
- The Hague Convention on Form of Testamentary Disposition of 1961: Many countries, especially in Europe, are parties to this convention. These countries generally recognize wills executed abroad so long as the will complies with the law of the decedent’s home country. Although the United States isn’t a party to this convention, that usually doesn’t matter to those countries that are. So, if you live in a Hague Convention country, your US will could very well be valid there.
- The International Will Statute (Washington Convention): The United States is party to this agreement, which provides uniform law on the validity of an “international will.” If your country of residence is also party to this agreement, it will generally recognize a will executed in the US if it conforms to the requirements of the International Will Statute. It’s important to note that most US wills are not drafted to conform to these requirements. They need specific language and execution steps. Therefore, if you live or own property in a Washington Convention country, you probably need a new will.
If you live and own property in any country that has not adopted either of these conventions, you’ll need to consult with local counsel to determine the validity of your US will there. This isn’t always straightforward, as local laws can vary wildly. Many expats find this can be a time-consuming and costly exercise, but it is essential to be certain of your legal standing.
2. Recognition of Your Disposition of Property and Choice of Law
Even if a country recognizes your US will as valid, it might not recognize your right to dispose of your property as you wish. Many countries around the world operate under different heirship regimes than the United States. “Forced heirship” is prevalent in civil law countries and those applying Islamic law. Examples of jurisdictions with forced heirship include France, Germany, Saudi Arabia, Iran, Japan, the Canadian province of Québec, and Louisiana in the United States.
These laws place limits on your ability to leave assets to anyone other than “reserved heirs” (usually descendants and spouses). Generally, a will being administered in these jurisdictions, will only operate on the portion of your estate that is outside of what is reserved for heirs. The rules of forced heirship can vary depending on whether you are simply living there, if the property is located there, or if you are a citizen of that country.
The good news is that sometimes it’s possible to choose, in your will, for the law of a different jurisdiction to control the distribution of your property. But you can’t assume this will work—you must plan accordingly. It is always best to engage with a local lawyer who understands your circumstances and requirements, as well as all the legal details involved in your specific case.
If you own property in a forced heirship country, you most likely need a new will.
3. Situs Wills: A Practical Solution
Even if one will could handle all your assets globally, is it practical? If you have a single will, your executor will likely need to manage your estate across different jurisdictions—often across multiple languages and cultures, often with a complex legal system. This can be incredibly expensive and time-consuming. The legal and administrative burden can not only overwhelm your loved ones but also reduce the overall value of your estate.
One solution is to use multiple or “situs” wills. These are wills designed to control the disposition of property in specific jurisdictions. For example, you could have a US International Will for your US and Australian assets, and a situs will for your property in Costa Rica. This simplifies probate by avoiding the need for a foreign court to supervise the management of assets in a different language. By utilizing a local lawyer, you will also be able to avoid any unintended tax burdens, and ensure a smooth and predictable delivery of your plan.
You may want to consider a situs will if you are in a forced heirship country, if you have foreign language issues, or if your country of residence hasn’t adopted the Hague or Washington Conventions.
The Expat Experience: Why This Matters More to You
As an expat, you’re not just a US citizen living abroad. You have a unique set of circumstances that adds layers to estate planning:
- You have a mix of assets in different countries: From bank accounts to property, your assets are likely spread across the globe.
- Your family might be spread across the globe: Your loved ones may be in the US, your host country, or elsewhere.
- You have a unique identity: You may have a cultural mix that is not solely tied to one country, so your will must reflect this.
- You have a global perspective: You’ve chosen a life that transcends borders, and your will needs to reflect that.
- You’re navigating multiple legal systems: As an expat, you’re subject to the laws of two or more countries, making estate planning especially complex.
Taking Control: Wills.com is Here to Help
Navigating the complexities of global estate planning might feel daunting, but it doesn’t have to be. Wills.com provides you with a clear, streamlined approach to ensure your wishes are honored, no matter where you are. While we offer state-specific documents for US residents, our platform is designed to be a global solution for everyone. We empower you to take control, and put systems in place to provide you with a secure and seamless delivery of your plan.
No matter where you are in the world, the Wills app allows you to:
- Upload Your Existing Estate Plan: Whether you have a will created by a lawyer or a holographic will, you can securely upload it into our app.
- Automate Delivery: Set delivery rules for your documents, digital assets, and financial instructions.
- Provide Personal Messages: Record video messages for your loved ones and plan for the delivery of digital mementos.
- Utilize Secure Storage: Keep all your important documents safe with our encrypted storage system.
To help navigate these complexities, we’ve created 195 unique country-specific estate planning guides that can help you understand the nuances of each country, and the steps you need to take to ensure your will is executed properly.
Visit our Learning Center to explore your country-specific guide.
Click any country in the map to learn more about local estate planning.
If you are an American abroad, you should meet with a qualified attorney who can review your will to determine if it meets your needs based on your new circumstances, and if necessary liaise with an attorney in your new country of residence.
Disclaimer: This article is not legal advice. If you want legal advice, you should consult with a lawyer.
