Considerations in Naming a Non-Citizen as Your Child's Guardian

Naming a guardian can be one of the most important parts of your estate plan. With increasing movement between countries, the person you trust most to raise your child in your absence might be a non-citizen. What, if any, additional concerns does that raise?

1. Will a court agree?
Naming a guardian in a will lets a probate or family court know what your wishes are as to who should care for your child. In any case, a Minnesota court is going to look at the best interests of the child. Your choice will be a weighty consideration for a judge. They will balance any other issues the citizenship status of your named guardian raises.

2. Will and should your child be as mobile as their guardian?
The lack of US citizenship ultimately means that either your guardian does not live in the United States or there is a chance that they may not be able to renew their residency. Should that occur, will it be possible for your child reside in the guardian's home country? Is that desirable? These questions should be considered before deciding on a guardian. You should also factor the cost of your child's possible immigration into your life insurance.

3. Should your guardian be the trustee of your child's trust?
Most estate plans for parents with minor children include a trust. Most of those parents name the guardian as the trustee for that trust. That normally makes sense. If you trust someone enough to raise your child, you trust them enough to control your child's finances. However, current IRS rules place a heavy burden on trusts that benefit US citizens, but are controlled by non-citizens. Will your named guardian be savvy enough to deal with burdensome IRS reporting regulations or do you need to make other plans? Additionally, if your guardian resides abroad, being a trustee may create tax implications in their own country.

If the person you most trust to raise your child is not a US citizen, there are many additional issues to consider. While ultimately you may still want to name them as your child's guardian, you want to address any issues their citizenship status creates.

Brouhaha Over Paterno Transfer

Among all of the legal brouhaha the Penn State scandal has raised, there was one going around estate planning circles this month. In July, Joe Paterno transferred the home to his wife for $1. Journalists speculated whether this was to shield assets, therefore an indication that perhaps the coach knew that a scandal might be on the horizon.

Many Pennsylvania attorneys who practice in civil litigation quickly ended this theory, pointing out that Pennsylvania law already exempts the home from judgments. There was really no need to protect the home from creditors. So what's going on?

A simple transfer to a spouse doesn't have great estate planning consequences, unless one is having health issues and such a transfer could prevent control issues from arising or if the transfer is made to a spouse as trustee of a trust. Both appear to the the case. The New York Times had a great discussion of how a transfer to a spouse as trustee of a trust can have great tax benefits. In the end, there really isn't much to have a brouhaha about.

How to get an EIN.

So, you've been named a personal representative of an estate. You've found the will, met with an attorney, had them file the paperwork with the court and received your letters testamentary. You've gone to the bank to set up an account for the estate and the bank asks for an EIN number. What the heck? First of all, an EIN number, or "employer identification number" is the equivalent of social security numbers for entities, like businesses or estates. Obtaining an EIN number is free, easy and fast. The Internal Revenue Service issues EINs online at http://www.irs.gov/businesses/small/article/0,,id=102767,00.html . Upon entering the requested information, including the social security number of the decedent and your own social security number, you'll immediately be issued an EIN. Once you receive the EIN, let your probate attorney know and give them the number for their records. Unlike a lot of things with probate, this is an issue that can be resolved immediately and at no cost.

Repost: What is an International Will?

It's almost the end of the month and I'm spending it in Germany on vacation. Rough, huh? In honor of vacation and generally taking things easy, I reposting a blog entry from 2010, with some additional information.

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.

Additional information: If the country you are dealing with is not a signatory to the convention, don't be discouraged. Not all, but many jurisdictions recognize the validity of a out-of-state or out-of-country wills as long as it meets the requirements of where it was executed.

The Fertile Octogenarian May Exist

Yahoo news is reporting that 94 year old Zsa Zsa Gabor may be trying to be the fertile octogenarian.

http://news.yahoo.com/94-old-zsa-zsa-gabor-going-mother-153309072.html

The "fertile octogenarian" is a legal notion that causes good estate planners to plan for additional children born after the will is signed, no matter the age of the testator (person signing the will) or the likelihood that they may have biological children. Who knows, the testator could always adopt... or be Zsa Zsa.

Planning Can Keep a Tragedy from Turning into a Circus

Anytime someone in their twenties passes away, it's a tragedy. That's the same for Amy Winehouse, regardless of her addiction history. However, from early reports, it appears that proper planning may prevent the tragedy from turning into a legal circus.

http://money.usnews.com/money/blogs/alpha-consumer/2011/07/27/amy-winehouses-financial-legacy

Something this article points out is that her estate plan will likely prevent portions of her estate to be awarded to her ex, Blake Fielder-Civil. This is an important point. Most jurisdictions, whether in the US or in another country, have rules about how an estate will be split out when you don't have a will, what we call dying intestate. These rules use assumptions about how most people would want their estate to be dispersed. However, those assumptions may do something that you don't want to do; for example, apparently in the United Kingdom, filter assets to exes. If you know anyone in your life that you want to make sure doesn't receive your estate, meet with a licensed attorney to review the likelihood that person could receive a portion and what you can do now to prevent a circus later.

Who's in Their Right Mind Anyway.

A probate court in Pennsylvania is determining whether the heir to the DuPont fortune had the capacity to execute a valid will. http://www.philly.com/philly/news/pennsylvania/123980894.html

In Minnesota, testamentary capacity means that the person executing the will knows the "nature, situation, and extent" of their property, the claims of others on their estate, and be "able to hold theses things in their mind" long enough to make a rational decision in distributing their assets. Check out the case of In re Estate of Torgersen, 711 N.W.2d 545, for more explanation. You don't have to be a financial genius to have capacity, just need to meet those three minimum requirements.

If you are setting up your estate plan and are thinking about disinheriting someone, a good idea is to request that your attorney ask you questions to demonstrate your capacity and record that conversation. That way, if anyone questions whether you had capacity when you made the will, there will be evidence showing that you did. If you're setting up a plan that disinherits someone, speak with a licensed attorney in your area about preventing questions of capacity.

Pre-nups Have a Place in Estate Plans

There are a variety of good reasons to enter into a pre-nuptial agreement, also referred to as an ante-nuptial agreement, with your soon-to-be spouse and not all of them include divorce. A more important, and hopefully likely, scenario is that you will be happily married until one of you passes away. However, without proper planning, property could pass in a way that neither you nor your soon-to-be spouse intend.

For example, if you have family farm property, normally your interest will go to your spouse upon your death. If your spouse gets remarried and fails to properly plan, their new spouse may get an interest in your family’s property. Additionally, even if you specifically give property to someone other than your spouse in your will, there are statutory rights for the spouse that can only be waived through an ante-nuptial or post-nuptial agreement. This can especially become a concern if you have children from a prior relationship.

If you have family farm land or this will be a second marriage, a pre-nuptial can be a valuable addition to your estate planning documents. If you think a pre-nuptial or post-nuptial might be right for your circumstances, contact a licensed attorney in your state.

Being Late to Your Own Funeral: How to make your funeral wishes known.

In a final act demonstrating her sense of humor, Elizabeth Taylor gave instructions that she be late to her own funeral.


http://content.usatoday.com/communities/entertainment/post/2011/03/elizabeth-taylor-late-for-her-own-funeral/1


Every once and awhile, I'm asked how to make your funeral wishes known. In fact, some people believe that is the main purpose of a will. However, I don't recommend funeral and burial wishes be placed in a will. A big reason is that it can take some time to locate the will, especially if it is in a safe deposit box that only you have access to. Burial decisions need to be made quickly and some decisions might be made before anyone sees your will.

A better place to put your burial instructions is in your health care directive. Health care directives name the person, the health care agent, who has the power to make decisions regarding your health care if you are incapacitated. It also is a way to communicate your wishes regarding end of life care. While burial wishes do not necessarily fall under the powers of a health care agent, a health care directive can be used to communicate those burial wishes. Once you have your wishes stated in your health care directive, you can share a copy with your named agent.

It is important to note that practically, it may be impossible to ensure your wishes are enforced. Anyone petitioning the court on your behalf won't get a hearing until likely long after you've been buried.

Minnesota Estate Planning and Probate a LexisNexis Top 25 Blog!

I'm honored to announce that Minnesota Estate Planning and Probate has been named a top 25 estate planning blog in the nation by LexisNexis. http://www.lexisnexis.com/community/estate-elderlaw/blogs/topblogs/archive/2011/03/31/the-lexisnexis-top-25-estate-planning-and-elder-law-blogs-of-2011.aspx Click on the link to find other top 25 blogs and to vote on your favorite. They'll announce the top blog on April 20th. I know I'm going to check out the competition and find some new blogs to follow.

You Don't Have to be American to Fear the Tax Man.

As Ronald Reagan said, “If it moves, tax it.” This statement is no more appropriate than in the case of those who make movement between nations a way of life. Obviously, American citizens have to deal with estate taxes, or at least know whether their estate isn't big enough to have to pay taxes. However, as a recent article on the Wall Street Journal reminds us, even non-citizens... and, in fact, non-residents may have to be concerned with US estate taxes.

Non-resident, non-citizen decedents, who have real property, personal property or securities located in the United States are liable for estate tax for those assets if the total fair market value of the assets located in the US exceeds $60,000.00. This is unlike American citizens or residents who are liable for their worldwide estate. In fact, if the decedent made significant gifts during their lifetime, that $60,000.00 exclusion could be even lower.

However, that doesn't mean that every non-resident, non-citizen whose US assets exceed $60,000.00 will have tax due. Tax treaties may reduce the amount owed. For example, if you are a German national, the 1998 Protocol Between the US and Germany amending the 1980 tax treaty allows for an exemption equal to the greater of the ratio of property situated in the United States included in gross estate to property included in gross estate wherever situated times the unified credit allowed for citizens in that year or the $13,000 credit allowed to all non-resident non-citizens. The IRS has a handy link to the current tax treaties in force.

If you are a foreign national with American assets, speak to an attorney versed in US estate tax and international tax treaties to determine how you may be affected.

Why does my estate planner need to know if I'm a citizen?

When I put an estate plan together, I always start out with a will questionnaire so that I have all of the information I need to determine what documents are needed and to draft those documents. One of the questions is the client's citizenship and place of birth. I've had quite a few clients ask why I have that on the questionnaire.

One of the big reasons that your planner needs to know your citizenship is to know what estate tax rules apply to you. I've posted about this issue before, but the basic concept is that the estate tax exemption is not always available to non-US citizens. Another reason is to know if an international will is appropriate and to know if foreign law may apply to certain portions of your estate and plan accordingly.

A basic reason is Minnesota law requires that, for any decedent either born in a foreign country or leaving heirs or devisees who reside in a foreign county, notice for any probate proceeding must be provided to the consul or other representative of that country. Giving proper notice is important, because it starts the window that creditors or possible heirs can bring claims. If proper notice isn't given, claims can be brought against the estate long after the family and personal representative thought the matter was closed. I include a reference in my wills regarding the client's citizenship and location of birth, if in a foreign country, in order to give the personal representive and their counsel a head's up so they can give correct notice.

If you have foreign citizenship or were born in a foreign country, be sure to let your estate planner know. Also, be sure to work with a planner who knows the consequences that your citizenship or place of birth will have on your estate plan.

The 2010 Tax Cut Compromise and Estate Planning.

Recently, as part of the 2010 tax cut compromise, the President and Congress agreed to put some certainty back into estate planning. As I've addressed in past posts, the federal estate tax exemption increased over the past few years, with a full repeal of the tax in 2010. However, a sunset provision in the tax code meant that the tax was set to return in 2011, with the exemption going back to $1 million. That created some uncertainty for estate planners.


However, the recent compromise brought some certainty back to estate planning. The exemption for the next two years is $5 million at a maximum rate of 35%. However, the compromise also has a sunset provision, which means in two years the exemption will go back to $1 million.


Even if the federal exemption becomes set on a long term basis, that doesn't mean you're in the clear if your estate is approaching $1 million. Many states have their own estate tax and may have their own exemption that does not match the federal exemption. Minnesota's estate tax exemption, for example, has been $1 million for many years and there is no talk of an increase. If your estate is nearing a value of $1 million (and remember that your taxable estate includes most life insurance), speak with an experienced estate planning attorney in your state.