Estate planning in the US for non-citizens

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Candace Wilkerson

As a lawyer representing foreign nationals residing in Washington State, it is essential to advise your clients on the importance of devising a will and/or other estate planning documents. This is especially crucial if your clients own assets in Washington State, or if their children are living with them in the United States.

Although Washington State generally recognizes a “foreign” will (one created in another state or country), provided it is valid in the home state or country, it’s highly advisable for your clients to draft a new will if they have relocated to Washington and do not have a pre-existing will.

Probate, the court process to administer the assets and debts of a deceased person and to transfer assets to the deceased person’s beneficiaries, is not always necessary in Washington. The need for probate is dependent on what assets the deceased person owns and how they are owned. However, certain assets do require probate; and if a foreign national dies with minor children (under 18 years old), the court may need to get involved.

If the foreign national dies while in Washington, their home country may require that probate be initiated in Washington because that is where the individual most recently resided. Probate may be initiated for a deceased person with or without a will. However, if a person dies without a will (or without a will that can be located), Washington will determine the distribution of many assets according to its laws of intestacy.

Intestacy determines inheritance according to a strict scheme of kinship. Therefore, it is important to explain to your clients how intestacy works. For example, if a deceased person has a spouse, even if that person is in the process of initiating divorce proceedings, that spouse will normally inherit all or most of the deceased person’s assets acquired after marriage, and a percentage of assets the deceased person acquired before marriage.

If your client is a foreign national residing in Washington for more than a few weeks, having a will makes it more likely that their wishes will be known and carried out if they were to die in Washington. However, certain assets, such as transfer-on-death financial accounts, might not transfer according to a will if beneficiaries are designated properly on such accounts and are still living at the time of the deceased person’s death.

In the will, your client can designate their choice of guardian for their minor children (minors) if something happens to both parents. This may protect the minor children from being in the care of strangers or being placed in foster care after both parents’ deaths until a legal guardian is appointed by the court.

Encourage your clients to have several other estate planning documents, such as durable powers of attorney and advance health care directives. These documents will allow your client to plan for their own incapacity, by naming an individual or professional fiduciary to make decisions for them and outlining their wishes for their end-of-life care.

Even if they do not plan to remain in Washington on a long-term basis, these estate planning documents are highly recommended for your clients residing in Washington. By guiding them through this process, you can help ensure that their wishes for their assets are understood and respected.