If you are a US Citizen living abroad, you may wonder if the will you executed in the United States will still work for you. Depending on your individual circumstances, your US will may continue to work for your overseas assets. However, there is a good chance that you need to update your estate plan. This article discusses the issues impacting the effectiveness of US wills abroad. This article does not discuss revocable trusts. If you have used a US revocable trust as part of your estate plan, and now live abroad, you should revisit the use of your trust with an advisor, because there could be negative implications.
There are three primary issues that impact the use of a US will in a foreign country:
- Is your US will considered “valid” in the foreign country for purposes of admitting it to the probate equivalent in the foreign jurisdiction?
- Does the foreign country’s legal system recognize the same rights as the United States regarding your ability to legally alienate property?
- Is it practical to use one US will to govern all of your property?
Validity of your US Will Abroad
If your will is considered “valid” by a foreign country, the country recognizes it as a will. To the extent that the substantive contents of a valid will conflict with local law (see the next section discussing Recognition of your Disposition of Property and Choice of Law) the country administering the will may refuse to honor them despite recognizing the will as valid. There are two international conventions on wills that would enable a foreign country to recognize your US will as valid. Together, these conventions cover about 70 countries. If you live in one of these countries, your US will may work abroad, subject to the limitations described below. If you do not live in one of the countries that has adopted one of the conventions, the recognition of your US will abroad depends on local law.
Many foreign countries (including most of Europe) are parties to the Hague Convention on Form of Testamentary Disposition of 1961. These countries generally recognize wills executed abroad so long as the will complied with the law of the decedent’s home country. Although the United States is not a party to this convention, this generally does not impact the validity of a will that would otherwise be recognized by countries party to the convention. If you live in one of the Hague Convention adopting countries, your US will could very well be valid in your country of residence.
The United States is party to the International Will Statute, also known as the Washington Convention. If the foreign country in which you reside is also party to this agreement, which provides a uniform law on the validity of an international will, they will generally recognize a will executed in the United States if it is conforms to the International Will Statute. Most wills drafted by US attorneys are not written to conform to requirements of the International Will Statute. The will must include special language and meet special execution requirements. Therefore, if you live and/or own property in one of the Washington Convention adopting countries, you probably need a new will.
If you live and own property in any country that has not adopted either of these conventions, you ought to consult with local counsel to determine the validity if your new will.
Recognition of your Disposition of Property and Choice of Law
Some foreign countries operate under different heirship regimes than the United States. “Forced heirship” is prevalent in civil law countries and those applying Islamic law. Examples of jurisdictions with forced heirship include France, Germany, Saudi Arabia, Iran, Japan, the Canadian province of Québec, and Louisiana in the United States. These forced heirship regimes place limitations on the ability to bequeath assets outside of the framework for “reserved heirs” (descendants and/or spouses). Generally, a will applying to property within these jurisdictions and being administered in those jurisdictions only operates on the portion of your estate outside of the amounts reserved to heirs. In these jurisdictions, the applicability of the forced heirship rules can vary: sometimes they only apply to individuals domiciled in these jurisdictions, sometimes they apply to any real property within the jurisdiction, and sometimes they apply to citizens of the jurisdiction, regardless of residency. It is sometimes possible to choose (in the will) for law other than that of the forced heirship regime to operate and control the dispositions of property.
If you are an American who owns property in a forced heirship country, you most likely need a new will.
Even if it is possible for one will to control the disposition of your assets around the world, it may not be practical. If you have one such will, your executor will generally need to coordinate your estate administration across various jurisdictions. This can be expensive and time consuming if the property is located in a non-English speaking country. It can also become expensive depending on the breadth of fees imposed by the jurisdiction handling the primary probate. As an alternative, you may want to consider using multiple or “situs” wills to control the disposition of property in specific jurisdictions. For example, you could use a US International Will to control your US and Australian assets, and a situs will to control property in Costa Rica. This way, the court handling your primary probate would not need to supervise the administration of the Costa Rican assets in a different language.
You may want to consider a situs will if you are dealing with a forced heirship country, if there are foreign language issues, or your country of residence has not adopted either the Hague or Washington Conventions.
If you are an American abroad, you should meet with a qualified attorney who can review your will to determine if it meets your needs based on your new circumstances, and if necessary liaise with an attorney in your new country of residence.
This article is not legal advice. If you want legal advice, you should consult with a lawyer.
 The convention states “A testamentary disposition shall be valid as regards form if its form complies with the internal law: a) of the place where the testator made it, or b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or e) so far as immovables are concerned, of the place where they are situated.” Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.
The full list of signatories to the convention is: Albania, Antigua and Barbuda, Armenia, Australia, Austria, Belgium, Bosnia and Herzegovina, Botswana, Brunei Darassalam, China, Croatia, Denmark, Estonia, Fiji, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Grenada, Ireland, Israel, Italy, Japan, Lesotho, Luxembourg, Maritius, Montenegro, Netherlands, Norway, Poland, Portugal, Republic of Moldova, Serbia, Slovenia, South Africa, Spain, Swaziland, Sweden, Switzerland, Tonga, Turkey, Ukraine, United Kingdom.
 Note that not all states have implemented the Washington Convention. If you own property in a state that has not implemented the Washington Convention and execute an International Will abroad, it may not be recognized in your state.
 The following countries have adopted the Washington Convention: Australia, Belgium, Bosnia and Herzegovina, parts of Canada subject to limitations, Cyprus, Ecuador, France, Italy (subject to restrictions), Libya, Niger, Portugal, and Slovenia. Others, including the UK, have signed the treaty but not yet enforced it.