The Myth of an International Will
With a large portion of my practice dedicated to estate planning for international families and individuals, I am often asked if I can prepare an “International Will” for clients who own assets in more than one country. Having read about International Wills online, they conclude that this is a simple way to plan for all of their assets in various jurisdictions.
Unfortunately, an International Will is anything but simple, and it’s seldom used in practice by experienced estate planning lawyers. An International Will generally refers to a document that complies with the requirements set forth in the Convention Providing a Uniform Law on the Form of an International Will, which has been signed by 21 countries, including the United States. Upon signing, the signatory countries agree to introduce legislation to their respective national legislatures adopting certain standards under which a will must be admitted to the probate court.
There are a number of problems that can arise with an International Will.
First, many countries have not signed the convention, including more than half of all OECD states. Of those countries that have signed, many have yet to introduce the necessary legislation implementing the convention. In some countries, like the U.S., probate matters are governed by state or provincial law, so it is up to each state or province can enact its own legislation. In the United States, 23 states (including New York) and the District of Columbia have enacted implementing legislation.
Even if the the necessary legislation has been implemented, the provisions of the Convention ensure only that the International Will is accepted by the court. It has no bearing on more substantive issues, such as which country’s law applies to a particular asset and whether the provisions contained in the document will be enforceable. For example, in the U.S., individuals have broad discretion with respect to how they leave their assets, so a will’s disposition provisions are likely to have full effect. In other countries, however, local inheritance laws can override a will’s intent, even if the will is duly admitted to the court. The lawyer who drafts the will may not be aware that the document will not have the intended effect in the foreign country.
Another issue that can arise with an International Will is confusion over legal terms that are specific to the country of the drafting lawyer. Even where a will is written in the same language, legal terminology can differ. If a court is not familiar with a foreign legal term, it may require an affidavit from a foreign lawyer explaining what the term means.
Another obstacle posed by using one will is that the original will can’t be physically filed in two courts. Therefore, a certified copy must be obtained from one court and then filed in a court in the other jurisdiction. All of this adds up to lengthy delays and high legal fees.
While we live in a global world, the law of probate and estate administration remains very much local. The idea of a single International Will as a simple way to plan for assets in various jurisdictions is appealing; however, in practice, it can cause more problems than it solves.