Probate for foreign nationals can be complicated and challenging, as it involves different laws, rules, and procedures depending on the state where the assets are located, the country of origin of the deceased, and the type and value of the assets.
Below, we will explain some of the complexities of probate for foreign nationals and how hiring a probate attorney can help you navigate them.
What is Probate and Why is it Necessary?
Probate is a court-supervised process that identifies and gathers the assets of a deceased person, pays their debts and taxes, and distributes the remaining assets to their heirs or beneficiaries.
Probate is necessary to transfer the legal ownership of the assets from the deceased to the living, and to ensure that the wishes of the deceased are respected. Probate also provides a way to resolve any disputes or claims that may arise regarding the estate.
When a non-U.S. citizen dies with assets in the U.S., probate is required.
Probate for Foreign Nationals – How Does It Work?
Probate works differently depending on whether the deceased was a resident alien or a nonresident alien.
- A resident alien is someone who has a permanent residence in the U.S., such as a green card holder, or who meets certain criteria of physical presence in the U.S.
- A nonresident alien is someone who does not have a permanent residence or substantial presence in the U.S.
If the deceased was a resident alien, their estate may be subject to probate in both the U.S. and their country of origin, depending on where their assets are located and how they are titled.
For example, if the deceased owned real estate in Florida and in their home country, they may need to go through probate in both jurisdictions to transfer the ownership of those properties.
However, if the deceased owned bank accounts or investment accounts that were payable on death or transferable on death to a beneficiary, those accounts do not need to go through probate, as they pass directly to the beneficiary.
If the deceased was a nonresident alien, their estate may only be subject to probate in the U.S. for their U.S.-based assets.
However, this does not mean that probate is simpler or easier for nonresident aliens. On the contrary, probate can be more complex and challenging for nonresident aliens, as they may face different issues and requirements than resident aliens or U.S. citizens, such as:
- The need to obtain an individual taxpayer identification number (ITIN) from the IRS to file tax returns and pay taxes on behalf of the estate.
- The need to file an estate tax return (Form 706-NA) with the IRS and pay any applicable estate taxes on the U.S.-based assets.
- The need to file an income tax return (Form 1040-NR) with the IRS and pay any applicable income taxes on any income generated by the U.S.-based assets during probate.
- The need to comply with different state laws and procedures regarding probate administration, asset valuation, creditor claims, beneficiary rights, homestead protection, exempt property, and inheritance taxes.
- The need to deal with potential conflicts of law between the U.S. and the home country of the deceased regarding will validity, intestacy, community property, taxes, etc.
- The need to deal with potential disputes or challenges from creditors, heirs, beneficiaries, family members, or other interested parties regarding the estate.
How Can a Probate Attorney Help?
As you can see, probate can be a daunting and overwhelming process that requires extensive knowledge of U.S. and international laws, rules, and procedures. That is why hiring a probate attorney can be incredibly beneficial for foreign nationals who are involved in a probate case in the U.S.
A probate attorney can:
- Draft your will and other estate planning documents to ensure that they are valid and enforceable both in the U.S. and in your home country.
- Advise you on how to title and transfer your assets to avoid or minimize probate and estate taxes in the U.S. and in your home country.
- Represent you as the executor or administrator of a loved one’s estate.
- Prepare and file all the necessary forms, documents, reports, and notices with the probate court, the IRS, and other agencies or parties involved in the probate process.
- Communicate and negotiate with creditors, heirs, beneficiaries, family members, or other interested parties on your behalf to resolve any disputes or claims regarding the estate.
- Protect your rights and interests as an heir or beneficiary of the estate and ensure that you receive your rightful share of the inheritance.
- Save you time, money, and stress by handling all the legal aspects of probate in a professional, efficient, and timely manner.
Jurado & Associates, P.A. Can Help You
If you are looking for a probate attorney who can help you navigate the complexities of probate for foreign nationals, look no further than Jurado & Associates, P.A.
We are here to assist you every step of the way.