With an increased mobility, interest rates being at an all-time low, and the globalization of the accumulation of wealth and assets, it is becoming more and more common to own properties and other intangible assets abroad.
With this diversification of portfolio assets comes the need for more intricate and comprehensive financial planning, including the necessity of having separate situs wills in addition to your home country principal wills if you own property abroad. Not only do separate situs will fundamentally makes sense because of the different international legal systems involved, but it also bears many advantages to having them in place for your overall estate planning.
So what exactly is separate situs will? A separate situs will is a distinct testamentary instrument that strictly concerns assets located in a particular jurisdiction or “situs,” and is typically executed in accordance with that jurisdiction’s governing laws. A separate situs will can be made for properties or assets covered in a specific state within the US, or in the case for the expatriate community, in a specific country that is outside the US. A separate situs will is often spoken of in the context of real estate property but can over any asset —both movable and fixed asset such as real estate, so long as the asset is held in that jurisdiction’s situs, and subject to that jurisdiction’s governing succession laws and legal system. Therefore, when it comes to the ownership of foreign properties, it is not only essential but critical due to differing international legal systems other countries follow, which vastly differs from the US legal system.
In the U.S., the judicial system we follow is a “common law system.” Under a common law system, our laws are codified and developed through decisions of the various courts and tribunals, or “case law” as it is often referred to, rather than through legislative statutes, mandates, or executive actions. In contrast, many other countries have adopted and adhere to a “civil law system,” which codifies their laws through legislative or executive action, and not through case law. Under each system, there are different legal constructs and in many respects, countries adopting a civil law system do not recognize some of the legal contracts and constructs in our common law system, which is further broken down as we have the federal and state law balance and cues. Therefore if you own property in France, that property is subject to French succession and testamentary laws. As such, you need to have a separate situs French will, in addition to any other wills(s) that you have in place in the U.S.
Even if you have properties in countries that adhere to a common law system, (countries such as Australia or Canada), it is still advisable and a good estate planning practice to have a separate situs for those countries, rather than just relying upon your principal home country’s will to provide for its disposition. What’s more, make sure you have the separate situs will drawn up by a professional estate planning attorney or advisor located in the foreign country, and who is well-versed and familiar with that jurisdiction’s succession laws and local rules. Issues involving the administration of foreign estates and assets are intricate and complex. More than making sure that local laws are strictly adhered to, they require a high level of expertise and even sophisticatedness to ensure key issues are identified and properly considered. Therefore, using a well trained professional to draw up a separate situs will in that jurisdiction is absolutely critical and essential, and to do so without one is futile.
Wani Iris Manly, Esq. is a corporate, securities, and estate planning lawyer in Paris, France. Licensed to practice law in the state of Florida, she is the principal of the law firm W. Manly, P.A., based in Miami, Florida. She is also the author of the book “Get Out of Survival Mode and Live The Life You Really Want,” to be released October 2015. For any questions concerning this article, she can be reached directly at firstname.lastname@example.org. To view Ms. Manly’s profile in LinkedIn, please go here: https://www.linkedin.com/pub/wani-iris-manly-esq/5a/10a/445.