Where does a will get executed if I die somewhere other than where the will was written?

April 14, 2008 2:38 PM

Where does a will get executed if I die somewhere other than where the will was written?

If I write a will in (say) Canada but die in the USA, where is the will executed? What if I was residing in the US? And if I effectively reside in multiple countries (let's say I was retired and split my time between Canada and Florida) do I need two wills? Essentially, how are jurisdictional issues resolved when it comes to executing a will? (Also, let's assume it's a properly prepared will and not just me writing it on a napkin)

posted by GuyZero to Law & Government (4 answers total)

Best answer: Wills are executed in your state of primary residence, regardless of both where you die and where it was written.

That said, each state has different guidelines that documents must meet in order to meet the legal standard of what compromises a will, so that while a will written in Delaware might be executed in Maine if the person moves there, but Maine might have more stringent standards than Delaware, such that the document, which meets the Delaware standard of a will but might not (in this hypothetical) meet the tougher Maine standard, and therefore no longer is considered a valid will.

Most often at issue is how many witnesses there are to the signature, for which states have varying minimum requirements. It is therefore common practice for lawyers to simply have as many witnesses co-sign the document as required by the highest minimum in any state, ensuring that no matter where a person might move to, the will would still be valid.

With regard to the international issue, there is a very strict legal standard which defines whether you are a resident of the United States or not, and I believe its something around spending above 30% of your time in the U.S. makes you a resident. This strict binary is necessary for all sorts of reasons - from taxes to customs to extradition - and there is ZERO gray area. Either you are a resident of the U.S. or you are not. As such, if you meet the legal standard of being a U.S. resident your will is executed in the U.S.
posted by ChasFile at 2:58 PM on April 14, 2008

Best answer: If you are a foreigner residing in the US, you need a will drafted in the US. This is very important and is well worth paying for a qualified attorney. If you die while living in the US, your estate is deemed to be taxable in the US by the IRS, and you are deemed not to be a permanent resident, then your estate will be taxed differently. You may only be allowed to pass $60k tax-free to your spouse (unlike the $2 million exemption currently granted to all permanent residents and citizens under current estate tax law). If you need to pass more money and assets tax-free, then you have to look at setting up a trust like a QDOT.

Keep in mind, the IRS and USCIS have different definitions of residency. The IRS uses different standards to determine residency depending on if they are taxing a living or dead person. You need a real attorney.
posted by crazycanuck at 3:38 PM on April 14, 2008

One executes a will when one signs it. Where you die is immaterial. I think what you are asking is what happens to my money if I die while not in the jurisdiction where the will is to be probated.

That is a question for a qualified trust and estates lawyer who knows your specific information.

If this is a hypothetical, give us a few more details.
posted by Ironmouth at 7:12 AM on April 15, 2008

Response by poster: Ah - thanks for the clarification on terminology. I know I need a lawyer but just wanted to to know where I should do so. I think I have it.
posted by GuyZero at 4:42 PM on April 15, 2008