MSBA Top 25 Blawg of 2011

2011 LexisNexis Top 25 Estate Planning and Elder Law Blog

Monday, March 29, 2010

What is an international will?

Just like different US states have different rules about what it takes to make a writing a valid will, different countries have different rules regarding what it takes to make a writing a will. For individuals who reside in a country other than their country of citizenship or own property in another country, these differences can create major headaches when it comes time to probate a will.

In order to prevent just those type of headaches, the 1973 Convention providing a Uniform Law on the Form of an International Will provides for unified requirements to cause a writing to be valid in any signatory country. Following these requirements allows for a one-document fits all affected jurisdictions approach to drafting a will, assuming all the jurisdictions are signatory countries. The convention is a great help for those living in an increasingly globalized society and can be found at http://www.unidroit.org/english/conventions/1973wills/1973wills-e.htm

However, because probate law is ruled by the states and not the federal government, the benefits of this treaty only clearly apply to residents of those states which have adopted the provisions of the treaty into their probate code. Luckily for Minnesota residents, Minnesota has adopted the provisions in Minnesota Statutes 524.2-1001 et al.

Some of the major additions to a normal will that are requirement for international wills, is for each page to be numbered, for each page to be signed by the testator, and for the will to be witnessed by an "authorized person" in addition to the standard witnesses required under state law. An "authorized person" in Minnesota is anyone licensed to practice law in the state of Minnesota.

If you reside in a country and have citizenship in another or have property in other countries, speak with an attorney licensed in your jurisdiction of residence who has experience with international wills.

I did my will... now where do I put it?

Okay, so you finally got it together and got a will signed. First of all, good for you! Far too many people put it off, never get around to it and their friends and family are eventually left to clean up an intestate mess. Now, what do you do with the binder, file or otherwise fancy document you left the attorney's office with? Here are some options.

1. Leave it with the attorney. Some offices provide this service and it sounds good, what better place to put it than your attorney's office? However, I wouldn't necessarily recommend it. The main reason is that hopefully you won't need the will for many, many, many years. In that time, the attorney could retire or close shop or the firm could merge with another. This could leave your loved ones scrambling to find the original. Sure, you may have a copy, but many probate courts will put up additional hoops if you can't provide the original.

2. Put it in your safe deposit box. It is secure, but consider that you will not be around to open it up. Check into how your love ones can get access when you're gone. There have been far too many instances where a will is in a deposit box with no one able to get access to it.

3. Check your county courthouse. In my county, Fillmore County, Minnesota, you can deposit your will for a one time minimal fee of around $20.00. This is a great, cost-effective option, because you know the county courthouse isn't going anywhere.

Of course, you can always keep the will in your home, but you should keep it in a waterproof and fireproof safe and let your love ones know how to get access to it if you're not there to do it.

Congratulations on getting that will done, now make sure your investment is taken care of.