A legal document that states your plan for your property and the placement of your children, upon your death. A Will lets you:

• designate who will inherit which of your assets;
• name a guardian for your children;
• specify when your children or grandchildren (or other beneficiaries) will receive what;
• authorize the sale of some of your assets during probate administration, because sometimes such a sale is necessary to raise money needed to pay taxes and expenses related to death;
• permit your business to continue operating.

A Will is only valid after death.

If you do not have a valid Will when you die, the Inheritance or Intestacy Law of the State in which each asset is located in the U.S., will apply. This law lists who inherits your wealth upon your death. It defines what is included in your estate and what is not yours at the time of your death. The Inheritance Law is different is every US state, and those are different from the law in another country.

You can do either. There is no one way which is right and another which is wrong. Having two separate Wills means more upfront costs due to having two Wills prepared, each by an attorney. There is always a concern that if you have one Will which states that it only covers assets located in one foreign country, and one which states the same for U.S. based assets, if you purchase an asset or investment in yet another foreign country, it will be not covered by either Will.

Another consideration is whether a court in either country will decide that the other Will, having been signed later, invalidates the Will in that country. For example, if you have a U.S. Will which was signed later than your Israeli or French or UK Will, a court in one of those countries may decide that the U.S. Will invalidated the non-U.S. Will. Having a Will declared invalid may result in that country’s succession laws being applied to your estate which is located in that country (see what happens if you do not have a Will above). You might not wish to have the heirs declared by law inherit (hence you may have had your Will prepared for that country). For example, if you remarry, you may wish for your children to inherit from you, and not your spouse, but local law will name your current spouse as your heir, at least in part.

If you own non-retirement accounts or securities located in the U.S. and you reside outside of the U.S., your heirs will be required to obtain a Transfer Certificate from the IRS (see discussion below on this page) if you choose to have your U.S. assets pass via a Will. Most U.S. financial institutions and transfer agents (for individual U.S. securities) will accept a foreign (non-U.S.) court probate order but will require the Transfer Certificate. If you choose to have a U.S. revocable living trust your heirs will not typically be required to obtain the Transfer Certificate.

In summary, you can certainly choose to have two Wills or one Will from your country of residence which will also be valid in the U.S. It very important to consider the Transfer Certificate requirement when planning to use a Will at all.

You are permitted by law to write your own Will. Should you? No. Your Will will have to be understood by legal departments at financial institutions and perhaps a court. So it is best if it is in language which they will understand accurately, to ensure that your wishes are implemented as you wished when you wrote the Will.

Remember that the purpose of your Will is to express your wishes when you can no longer do so.

A General Durable Power of Attorney is typically used to circumvent the need for a guardianship, at the time when a person loses the ability to make financial decisions. The agent can then take over and make these decisions with the ease of presenting the Power of Attorney, rather than having to appear in Court and file for guardianship. A guardianship fee which is a percentage of the value of the assets is assessed annually to be paid to the Court for the Court’s role in the guardianship. If a Power of Attorney is executed, this fee need not be paid.

A power of attorney is a document that appoints someone to act as your agent. An agent is a person (or persons or corporation or bank) who has authorization to act for someone else. The one who appoints the agent is the principal (you); the agent is also called the attorney-in-fact (but does NOT have to be an attorney). If you have appointed an agent by a power of attorney, acts of the agent within the authority spelled out in the power of attorney are legally binding on you, just as though you performed the acts yourself. The power of attorney can authorize the agent to perform a single act or a multitude of acts repeatedly.

The power of attorney is only valid until death. Then the Will or trust or inheritance law takes over. Powers of Attorney do not cross borders. You will need a separate power of attorney for each country where you own assets.

A trust is an entity (similar to a company) which is created by a contract (trust agreement) between the Settlor or Grantor, who is the person who is setting up the trust and the Trustee, who will be managing the trust assets (what the trust owns) and following the terms of the contract. The Trust Agreement specifies who can receive the trust assets or income from those assets. They are beneficiaries of the trust.

There are many different kinds of trusts. Trusts can serve as an alternative to a Will. You may be able to take advantage of certain tax benefits by using a specific type of trust.

You do not have to have a trust. No estate planning attorney should sell you anything. A good estate planning attorney will present all of the options for your estate plan as well as the advantages and disadvantages of each option, so that you can make the best decision for your family and its wealth.

In general, the advantages of having a U.S. revocable living trust which is funded during your lifetime, include – not needing a Transfer Certificate, no probate even for real estate, being able to protect the assets from creditors for future generations, being able to help a child or grandchild who needs help for any number of reasons and more. The disadvantage is the set up cost. The ongoing cost should not be an issue.

A Transfer Certificate is a document from the IRS authorizing that estate tax was either paid as required or was not due. In order to obtain a Transfer Certificate one must either file an estate tax return if it is due, (see What is the Federal Estate Tax?) or file a request for a Transfer Certificate. The request must list all assets the decedent owned on the date of death and each asset’s value on date of death. This way the IRS can be sure no estate tax was in fact due. A US CPA typically prepares the request.

Unfortunately the IRS is backlogged about 13 months for reviewing the requests for a Transfer Certificate. Until one is received, the account or US stock is frozen even if jointly owned.

A Transfer Certificate is required for all US non-retirement accounts or ownership of US stock, which is valued on date of death at $60,000 or more. 

If you are a U.S. citizen, your estate is required to pay the U.S. Federal Estate Tax on all of your assets, wherever located, worldwide. All assets are counted, including real estate, bank accounts, life insurance, retirement accounts, pensions, jewelry, art work and any other investment. It does not matter how the assets are titled, including if they are owned jointly with others.

As of 2022, U.S. citizens have a large exemption from the tax: $12.02 million. Anything over that amount shall be taxed at a rate of between 18-40% of the value of the assets on the date of death. Note that as of Jan. 1, 2026, the exemption amount will be halved, so around $6 million per U.S. citizen.

States also have estate taxes at a rate of 7%-16% of the value of the assets located in that state on the date of death, which must be paid in addition to the Federal Estate Tax. The state estate tax is typically due only if a Federal Estate Tax was due. If you reside outside of the U.S., the state estate tax will typically only apply to real estate in that state, or to anything tangible (art, jewelry and the like) which is located in that state.

Non-U.S. citizens who own assets located in the U.S. (including investment in U.S. companies or loans to U.S. citizens) on the date of their death are also required to pay the U.S. Federal Estate Tax and the state estate taxes. Their exemption is only $60,000 total.

All estate taxes can be avoided by simple estate planning.

The following questions will help you determine whether you need to meet with an estate planner regarding your U.S. assets. If you reply “yes” to any of these questions, I advise you to consult with a U.S. estate planner.

• Do you own anything that is located in the U.S. (bank account, real estate, investment)?
• Do you want to decide what is done with your money when you can no longer make decisions whether due to incapacity or death? Do you have a specific plan in mind for your assets?
• Are you concerned with a prolonged process denying access to the family’s wealth after your death?
• As a family, do you own (worldwide) more than $6 million?
• Do you wish to avoid the fees and delay involved in the guardianship process?

Contact Osher Felicia Haleli, Esquire for a consult today.