How to determine the validity of your Will outside the United States.
By Melissa Broad, Contributing Writer.
Laws regarding the validity of personal wills and testaments and the consequent distribution of estates and assets are entirely dependent on location. In the United States, all legally recognized wills are constructed to comply with individual state and country law. Yet, can such legal documents hold their weight outside the United States? If part of your personal property inventory is housed on foreign land, then you might want to analyze dependent factors so you can be sure that your Will is valid in its entirety.
How many witnesses do you have?
In the United States, two competent witnesses are required to make the document legally binding. However, the number of witnesses necessary for the same Will making process in a foreign country might be a different matter. If there is a discrepancy in the number of witnesses required, then the validity of your Will may be questionable.
What type of Will do you have?
There are several types of Wills with some being considered as non-traditional. Thus, the type of Will you have may affect its effectiveness. A testamentary will is the most traditionally recognized and usually presented as a formal document. Other non-traditional wills include holographic, nuncupative, and joint and mutual wills.
Holographic wills are typically handwritten and signed by the testator without the involvement of an attorney while nuncupative wills are declared orally to witnesses. Lastly, joint and mutual wills are made by married couples to provision for the identical distribution of their property. Thus, the validity of your Will depends on whether it is of the type recognized as legally binding in the foreign country.
Does your Will consider dispositions to spouses and descendants?
Laws of succession regarding inheritance by spouses and descendants also factor into the validity of your Will abroad. Disposition of property to a legal spouse or a legitimate heir may be mandatory, regardless of any wishes to the contrary stated in your Will. Thus, foreign law may not be able to execute your Will as directed if they require disposition to spouses and descendants, but you have not included any.
Does your Will include a testamentary trust?
Testamentary trusts might be included in a will, and they take effect as soon as the person is deceased. Usually, a named trustee is appointed to manage and distribute the trustor's assets and property to beneficiaries according to instructions stated in the Will. Unfortunately, testamentary trusts are not a common phenomenon in most foreign countries, and this might cause issues when it comes to enforcing the contents of the Will. As an example, will trusts may incur steep tax liabilities for the beneficiaries making the inclusion of such trusts an unfavorable option.
Is legal counsel useful in determining the validity of your Will in a foreign country?
If you are still having trouble determining the validity of your Will in a foreign country of interest, then seeking the services of a professional and competent trust and estate attorney in the U.S. is a recommended option. Sitting down with an attorney who is well versed in the details of foreign assets dispensation will help you know if your Will is considered valid abroad and what you need to do to secure its validity in case it fails the validity test.