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Tuesday, July 19, 2016

Dealing With an Estate that Spans Beyond the Borders of the US


Summary: In today's world, with the availability and affordability of travel across the continent or the globe, it is now more than ever a truly global society. The impacts of this evolution span to many areas, including estate planning. If you have assets in multiple states or countries, it is important to understand how the differences in the laws of each place may impact you. When you cross borders, you should take the necessary steps, including a thorough estate plan review, to ensure that your true and current estate planning goals and objectives will be carried out when you die.    

At each of the Walt Disney Theme Parks and Resorts, there exists an amusement ride that reminds us all that "It's a Small World After All." Today, this is truer than it's ever been. If you have an estate that spans multiple US states or even multiple countries, you should be very certain to create an estate plan that is properly constructed to ensure that your wishes are carried out.

An example where things did not go smoothly was brought to light in a Florida court case from late 2015. An Argentine woman, Elena Isleno, died in Miami-Dade County with assets in both Argentina and the United States. She had two wills: a first one created in New York in 2007 and second one, created four months later, in Argentina. The woman's New York will distributed all of her US possessions to a collection of relatives and friends living in the US and Argentina. The will from Argentina purported to distribute all of the woman's assets (in both countries) and named a completely different set of relatives and friends as recipients of the woman's wealth. The will from Argentina also said that it revoked any previous wills that Isleno had signed, which would have included her New York will.   

After Isleno died in 2012, the beneficiaries named in the New York will sought to admit that document to probate in Florida. Unsurprisingly, the beneficiaries under the Argentina will challenged this and sought to admit the South American document. The laws of Florida say that, in most cases, a foreign will may be admitted to probate in that state if the will complies with the laws of the country where it was created. Florida law has two exceptions: holographic (handwritten) wills and nuncupative (oral) wills. In Florida, foreign wills of these types are never allowed. However, as long as Isleno's will was neither handwritten nor oral, and complied with Argentine law, it would have controlled the distribution of all of the woman's assets.

However, Isleno created her will in Argentina by reciting her wishes to an Argentine notary, who wrote down what the woman said, read it back to her and then, after Isleno approved it, the notary executed the document. Isleno never signed it. That, as it turned out, was what decided the case. This way of creating a will qualified as an oral will, the Florida Court of Appeal in Miami decided. As a result, that meant that the Argentine will was not valid in Florida and the beneficiaries under the New York will were free to go forward with probating the New York will and receiving the woman's US assets in accordance with the terms set out in the New York will. (The beneficiaries under the Argentine will were free to go forward with probating that will in Argentina and receiving the woman's Argentine assets in accordance with that document, but could do nothing about Isleno's US assets.)

Isleno's estate points out the importance of regularly updating and maintaining your estate plan. Certain events should almost always trigger a review of your plan. Making changes and crossing state or national borders are two such instances. A careful review of Isleno's plan, especially the changes she made while she was in Argentina, could have revealed the fact that her Argentine will was not valid in Florida. This discovery could have led to the creation of necessary documents, such as, for example, a Florida will that mirrored the Argentine will. This potentially would have avoided the need for drawn-out and expensive litigation and the potential frustration of the woman's true estate planning goals.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com

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