I have been practicing law since 1994. I have been extremely focused on the areas of estate and probate law during that time. Through those years I have a number of clients who have property in other countries. Usually we agree that they will talk with an attorney in the other country. As you might have guessed many countries have far simpler laws for passing assets, after death, than we do here in California. Some not as easy. The one, almost uniform, constant I have found is that most countries do not honor our living trusts. That is, the concept of a revocable living trust generally is not one that carries over. There are some exceptions but even then they might prefer, or require, the use of THEIR countries trust and not a US trust.
The use of a home country will is fine. As long as the two wills clearly do not revoke the other one there should be no problem. Yes, watch out for probate but beyond that having a will in the other country should be fine. Just try to meld it with your US will so they work together.
I was recently talking to a colleague about a high net worth client with property in another country. One thought they had was to use an international will. I must admit my use of international wills is limited but in my research I have to agree this is a great item to consider when you own property in another country. In fact, qualifying your “California” will as an “international” will really is not that difficult.
The the International Institute for the Unification of Private Law (UNIDROIT) held the Convention Providing a Uniform Law on the Form of an International Will in Washington DC in 1973. They developed the guidelines for an international will. The entire text is below. However, in summary the requirements are:
– every page is numbered.
Again, the full act is below. If you want to talk about an international will for you please contact us. -John
DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an “international will” which, if employed, would dispense to some extent with the search for the applicable law;
HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:
1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.
2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.
3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.
4. Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.
1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.
2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.
The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.
The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.
1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.
2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.
1. The signature of the testator, of the authorized person, and of the witnesses to an internatíonal will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.
2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.
The safekeeping of an international will shall be governed by the law under which the authorized person was designated.
No reservation shall be admitted to this Convention or to its Annex.
1. The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.
2. The Convention shall be subject to ratification.
3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.
1. The Convention shall be open indefinitely for accession.
2. Instruments of accession shall be deposited with the Depositary Government.
1. The present Convention shall enter into force six months after the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.
2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification or accession.
1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.
2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has reccived the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.
1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.
2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.
3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.
1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.
2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.
If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.
1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.
2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:
(a) any signature;
(b) the deposit of any instrument of ratification or accession;
(c) any date on which this Convention enters into force in accordance with Article XI;
(d) any communication received in accordance with Article I, paragraph 4;
(e) any notice received in accordance with Article II, paragraph 2;
(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on which such declaration takes effect;
(g) any denunciation received in accordance with Article XII, paragraph 1, or Article XIII, paragraph 3, and the date on which the denunciation takes effect;
(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on which the declaration takes effect.
IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized to that effect, have signed the present Convention.
DONE at Washington this twenty-sixth day of October, one thousand nine hundred and seventy-three.
UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL
1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.
2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.
This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.
1. The will shall be made in writing.
2. It need not be written by the testator himself.
3. It may be written in any language, by hand or by any other means.
1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.
2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.
3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.
1. The signatures shall be placed at the end of the will.
2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.
1. The date of the will shall be the date of its signature by the authorized person.
2. This date shall be noted at the end of the will by the authorized person.
In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.
The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.
The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:
(Convention of October 26, 1973)
1. I, . . . . . . . . . . . . . . . . . . . . (name, address and capacity), a person authorized to act in connection with international wills
2. Certify that on . . . . . . . . . . . . . . (date) at . . . . . . . . . . . . . . . . (place)
3. (testator) . . . . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth) in my presence and that of the witnesses
4. (a) . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth)
(b). . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth)
has declared that the attached document is his will and that he knows the contents thereof.
5. I furthermore certify that:
6. (a) in my presence and in that of the witnesses
(1) the testator has signed the will or has acknowledged his signature previously affixed.
*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
– I have mentioned this declaration on the will
* – the signature has been affixed by . . . . . . . . . . . . . . . . (name, address)
7. (b) the witnesses and I have signed the will;
8. * (c) each page of the will has been signed by . . . . . . . . . . . . . . . . . . . . . . . . . . and numbered;
9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;
10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;
11. * (f) the testator has requested me to include the following statement concerning the safekeeping of his will: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14. SIGNATURE and, if necessary, SEAL
* To be completed if appropriate.
The authorized person shall keep a copy of the certificate and deliver another to the testator.
In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.
The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.
The international will shall be subject to the ordinary rules of revocation of wills.
In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.