TWO Wills May Not Be TOO Many

Individuals domiciled in other countries who own assets in the United States that would be subject to probate should consider (among other planning options) creating a Will that relates only to their U.S. property.

In order for a Will to be admitted to probate, which is required for it to be effective in transferring property, the Will must be determined to be the “Last Will” – therefore that Will is generally the testator’s only Will.  But for Canadians (and others) with property in the United States or another country there are a number of advantages to having multiple Wills.

The principal advantage of a second Will for each country in which property is owned is that the process of admitting the Will to probate is faster and more efficient than the process of securing authenticated copies of the domiciliary probate (if there even is one).  And in jurisdictions like Florida, where qualifying non-resident fiduciaries can be problematic, providing for local (or closely related) fiduciaries can not only avoid delays but also avoid the possible requirement that the fiduciaries post a bond, which not only adds additional expense but can add further delays in opening of the estate.

Another problem avoided with a separate Will is the limited acceptance of self-proving affidavits that do not comply with local law. While the substantive elements of Wills executed in one jurisdiction historically have been honored in all jurisdictions, the procedural elements that establish a Will as self-proven have not.  A self-proven Will avoids the requirement that a witness testify after the testator’s death regarding the execution of the Will.  Although that testimony can often be obtained later by a local notary, the admission of the Will to probate can be delayed by several weeks or more.

When an estate plan crosses a border where the primary language is different from that of the client’s domicile, having a second Will prepared in the local jurisdiction also avoids the need to arrange for a certified translation.  Legal terms of art, especially those dealing with real property, may not translate in the way the client intended.  It is of course imprudent (at best) to draft a Will that may affect property rights in another jurisdiction without the benefit of a review by local counsel, but any additional expense incurred is a wise investment that will save time and money when sensitivity to both will be at their highest.