will & estate planning for recent immigrants
Jan 10th 2006, 5:18 am
#1
Guest
Posts: n/a
will & estate planning for recent immigrants
Hi everyone.
I have a few related questions on will and estate planning for recent
immigrants (those with green cards) and non-immigrants (e.g., those
with H-1B's). I imagine that many others who follow this newsgroup
will also find my questions relevant.
I will use myself, a Canadian working in the U.S. on an H-1B, as an
example. My child is a U.S. citizen by birth (born in the U.S.) and
was also granted Canadian citizenship (as both of his parents are
Canadians).
1. Who will become his legal guardian, if my wife and I were to perish
in an accident? In my case, I would like my son to be taken care of by
my sister-in-law or by my brother, who both live in Canada. Will the
U.S. government choose _not_ to send my son, a U.S. citizen, to a
foreign country (a country where he also is a citizen of), but instead
put him up in a foster home?
2. Would the presence of a will affect the answer to Question 1?
This situation can be worse, as I understand that countries such as
China and Japan do not recognize dual citizenship. For example, if an
immigrant couple from China were to die suddenly, the argument for
sending their U.S.-born child back to his/her relatives in China is not
very strong as the child is not a Chinese citizen.
Any advice is appreciated.
Teich
I have a few related questions on will and estate planning for recent
immigrants (those with green cards) and non-immigrants (e.g., those
with H-1B's). I imagine that many others who follow this newsgroup
will also find my questions relevant.
I will use myself, a Canadian working in the U.S. on an H-1B, as an
example. My child is a U.S. citizen by birth (born in the U.S.) and
was also granted Canadian citizenship (as both of his parents are
Canadians).
1. Who will become his legal guardian, if my wife and I were to perish
in an accident? In my case, I would like my son to be taken care of by
my sister-in-law or by my brother, who both live in Canada. Will the
U.S. government choose _not_ to send my son, a U.S. citizen, to a
foreign country (a country where he also is a citizen of), but instead
put him up in a foster home?
2. Would the presence of a will affect the answer to Question 1?
This situation can be worse, as I understand that countries such as
China and Japan do not recognize dual citizenship. For example, if an
immigrant couple from China were to die suddenly, the argument for
sending their U.S.-born child back to his/her relatives in China is not
very strong as the child is not a Chinese citizen.
Any advice is appreciated.
Teich
Jan 10th 2006, 7:04 am
#2
Guest
Posts: n/a
Re: will & estate planning for recent immigrants
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[email protected] wrote:
> Hi everyone.
>
> I have a few related questions on will and estate planning for recent
> immigrants (those with green cards) and non-immigrants (e.g., those
> with H-1B's). I imagine that many others who follow this newsgroup
> will also find my questions relevant.
>
> I will use myself, a Canadian working in the U.S. on an H-1B, as an
> example. My child is a U.S. citizen by birth (born in the U.S.) and
> was also granted Canadian citizenship (as both of his parents are
> Canadians).
>
> 1. Who will become his legal guardian, if my wife and I were to perish
> in an accident? In my case, I would like my son to be taken care of by
> my sister-in-law or by my brother, who both live in Canada. Will the
> U.S. government choose _not_ to send my son, a U.S. citizen, to a
> foreign country (a country where he also is a citizen of), but instead
> put him up in a foster home?
You may want to consult with a an attorney experienced with family law on
this. Personally, I don't expect too much trouble with following your
wishes.
> 2. Would the presence of a will affect the answer to Question 1?
A will is probably not the right document for this kind of thing. Again, a
question you should ask an attorney.
> This situation can be worse, as I understand that countries such as
> China and Japan do not recognize dual citizenship. For example, if an
> immigrant couple from China were to die suddenly, the argument for
> sending their U.S.-born child back to his/her relatives in China is not
> very strong as the child is not a Chinese citizen.
Well, it's really not the argument that is weak. Rather, the child may not
be eligible for a visa for that country. As long as the child has the
necessary immigration paperwork for whatever country applies, I expect that
the situation is not fundamentally different from your one.
- --
Please visit my FAQ at http://www.kkeane.com before asking a question here.
It may answer your question. Remember, I am strictly a layperson without
any legal training. I encourage the reader to seek competent legal counsel
rather than relying on usenet newsgroups.
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[email protected] wrote:
> Hi everyone.
>
> I have a few related questions on will and estate planning for recent
> immigrants (those with green cards) and non-immigrants (e.g., those
> with H-1B's). I imagine that many others who follow this newsgroup
> will also find my questions relevant.
>
> I will use myself, a Canadian working in the U.S. on an H-1B, as an
> example. My child is a U.S. citizen by birth (born in the U.S.) and
> was also granted Canadian citizenship (as both of his parents are
> Canadians).
>
> 1. Who will become his legal guardian, if my wife and I were to perish
> in an accident? In my case, I would like my son to be taken care of by
> my sister-in-law or by my brother, who both live in Canada. Will the
> U.S. government choose _not_ to send my son, a U.S. citizen, to a
> foreign country (a country where he also is a citizen of), but instead
> put him up in a foster home?
You may want to consult with a an attorney experienced with family law on
this. Personally, I don't expect too much trouble with following your
wishes.
> 2. Would the presence of a will affect the answer to Question 1?
A will is probably not the right document for this kind of thing. Again, a
question you should ask an attorney.
> This situation can be worse, as I understand that countries such as
> China and Japan do not recognize dual citizenship. For example, if an
> immigrant couple from China were to die suddenly, the argument for
> sending their U.S.-born child back to his/her relatives in China is not
> very strong as the child is not a Chinese citizen.
Well, it's really not the argument that is weak. Rather, the child may not
be eligible for a visa for that country. As long as the child has the
necessary immigration paperwork for whatever country applies, I expect that
the situation is not fundamentally different from your one.
- --
Please visit my FAQ at http://www.kkeane.com before asking a question here.
It may answer your question. Remember, I am strictly a layperson without
any legal training. I encourage the reader to seek competent legal counsel
rather than relying on usenet newsgroups.
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Jan 10th 2006, 12:55 pm
#3
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: will & estate planning for recent immigrants
Originally Posted by teich50
Hi everyone.
I have a few related questions on will and estate planning for recent
immigrants (those with green cards) and non-immigrants (e.g., those
with H-1B's). I imagine that many others who follow this newsgroup
will also find my questions relevant.
I will use myself, a Canadian working in the U.S. on an H-1B, as an
example. My child is a U.S. citizen by birth (born in the U.S.) and
was also granted Canadian citizenship (as both of his parents are
Canadians).
1. Who will become his legal guardian, if my wife and I were to perish
in an accident? In my case, I would like my son to be taken care of by
my sister-in-law or by my brother, who both live in Canada. Will the
U.S. government choose _not_ to send my son, a U.S. citizen, to a
foreign country (a country where he also is a citizen of), but instead
put him up in a foster home?
2. Would the presence of a will affect the answer to Question 1?
This situation can be worse, as I understand that countries such as
China and Japan do not recognize dual citizenship. For example, if an
immigrant couple from China were to die suddenly, the argument for
sending their U.S.-born child back to his/her relatives in China is not
very strong as the child is not a Chinese citizen.
Any advice is appreciated.
Teich
I have a few related questions on will and estate planning for recent
immigrants (those with green cards) and non-immigrants (e.g., those
with H-1B's). I imagine that many others who follow this newsgroup
will also find my questions relevant.
I will use myself, a Canadian working in the U.S. on an H-1B, as an
example. My child is a U.S. citizen by birth (born in the U.S.) and
was also granted Canadian citizenship (as both of his parents are
Canadians).
1. Who will become his legal guardian, if my wife and I were to perish
in an accident? In my case, I would like my son to be taken care of by
my sister-in-law or by my brother, who both live in Canada. Will the
U.S. government choose _not_ to send my son, a U.S. citizen, to a
foreign country (a country where he also is a citizen of), but instead
put him up in a foster home?
2. Would the presence of a will affect the answer to Question 1?
This situation can be worse, as I understand that countries such as
China and Japan do not recognize dual citizenship. For example, if an
immigrant couple from China were to die suddenly, the argument for
sending their U.S.-born child back to his/her relatives in China is not
very strong as the child is not a Chinese citizen.
Any advice is appreciated.
Teich
You will need to contact an attorney who does this type of thing [I do it from time to time, but it scares me].
The following is just very GENERAL comment.
1. At least in the United States, your nationality does not enter into the equation on estates. [It can effect the amount of any estate tax that might be due, a different issue].
2. An estate is "administered" or "probated" in the jurisdiction of the decedant's "residence." "Residence" is based more upon the basic facts rather than immigration status.
3. A will CAN and often does designate who gets custody and as a general rule, this designation WILL be honored. If it can't be honored, then it can't.
Again, these comments are general and are not meant as legal advice.
Jan 11th 2006, 12:20 am
#4
Guest
Posts: n/a
Re: will & estate planning for recent immigrants
Thanks Kevin and Folinskyinla for your comments.
While I understand that I need to retain a competent attorney to handle
this issue, I am wondering what your think will happen to the U.S.-born
child, if an non-immigrant couple were to pass away suddenly _without_
leaving a will (which may not be an uncommon scenario given the number
of H-1B's and L-1's in the U.S.). Do you think the U.S. will _permit_
a U.S. citizen, who is a minor, to be sent away to a "foreign" country?
If I make the argument that the U.S. has a duty to protect its
citizens, the government will have no choice but to send the child to
an orphanage or to a foster home inside the U.S.
Teich
While I understand that I need to retain a competent attorney to handle
this issue, I am wondering what your think will happen to the U.S.-born
child, if an non-immigrant couple were to pass away suddenly _without_
leaving a will (which may not be an uncommon scenario given the number
of H-1B's and L-1's in the U.S.). Do you think the U.S. will _permit_
a U.S. citizen, who is a minor, to be sent away to a "foreign" country?
If I make the argument that the U.S. has a duty to protect its
citizens, the government will have no choice but to send the child to
an orphanage or to a foster home inside the U.S.
Teich
Jan 11th 2006, 2:44 am
#5
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: will & estate planning for recent immigrants
Originally Posted by teich50
Do you think the U.S. will _permit_
a U.S. citizen, who is a minor, to be sent away to a "foreign" country?
If I make the argument that the U.S. has a duty to protect its
citizens, the government will have no choice but to send the child to
an orphanage or to a foster home inside the U.S.
Teich
a U.S. citizen, who is a minor, to be sent away to a "foreign" country?
If I make the argument that the U.S. has a duty to protect its
citizens, the government will have no choice but to send the child to
an orphanage or to a foster home inside the U.S.
Teich
Yes, I think the US will permit that child to leave, all other things being equal. I find somewhat amusing that you consider "orphange" or "foster homes" to be "protection." If there are close family outside the US, then why shouldn't they be allowed to take care of the child? Isn't the child entitled to the care and love of her family.
BTW, not directly on point -- in the old suspension arena and current cancellation arena, it is not considered "hardship" that US born children will be "de facto deported" when parents are deported. A long time ago, it was forcefully and repeatedly argued that parents of US born children was unconstitutional as the "de facto deporation" of US citizens. That argument was uniformly slapped down -- so much so that I think that an attorney would be risking sanctions for making a frivolous argument if made today.
Jan 11th 2006, 7:31 pm
#6
Guest
Posts: n/a
Re: will & estate planning for recent immigrants
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There is no law that says that US citizens have to reside in the USA, or
that the US has any authority to prevent a US citizen from leaving the
country. Part of the rationale, too, is that upon reaching age 18, the
child would be free to return to the USA.
I agree with Folinskyinla. Without a will, a court will look at the overall
situation and the best interest of the child. Of course, it will take
statutes into account. In most cases, I would expect that preference would
be given to family.
There are of course quite a few factors that would end up taken into
account:
- - how closely is the family related?
- - what country is the family in, and what status do they have? A family in
Canada might well have a more clear-cut claim than a family in the Dafur
region of Sudan, for instance.
- - the needs of the child. For instance, if the child has a disability (say,
diabetes), the availability of medical care may factor into the decision.
- - immigration laws of the other country. If the child wouldn't even be
allowed to be there, it could weigh heavily against the family.
- - any criminal and similar issues in the family. Even within the US, a
history of child abuse can be a factor for ruling against the family, for
instance.
Bottom line, it will likely be very much a case-by-case decision, but
generally family will be given deference.
[email protected] wrote:
> Thanks Kevin and Folinskyinla for your comments.
>
> While I understand that I need to retain a competent attorney to handle
> this issue, I am wondering what your think will happen to the U.S.-born
> child, if an non-immigrant couple were to pass away suddenly _without_
> leaving a will (which may not be an uncommon scenario given the number
> of H-1B's and L-1's in the U.S.). Do you think the U.S. will _permit_
> a U.S. citizen, who is a minor, to be sent away to a "foreign" country?
> If I make the argument that the U.S. has a duty to protect its
> citizens, the government will have no choice but to send the child to
> an orphanage or to a foster home inside the U.S.
>
> Teich
- --
Please visit my FAQ at http://www.kkeane.com before asking a question here.
It may answer your question. Remember, I am strictly a layperson without
any legal training. I encourage the reader to seek competent legal counsel
rather than relying on usenet newsgroups.
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There is no law that says that US citizens have to reside in the USA, or
that the US has any authority to prevent a US citizen from leaving the
country. Part of the rationale, too, is that upon reaching age 18, the
child would be free to return to the USA.
I agree with Folinskyinla. Without a will, a court will look at the overall
situation and the best interest of the child. Of course, it will take
statutes into account. In most cases, I would expect that preference would
be given to family.
There are of course quite a few factors that would end up taken into
account:
- - how closely is the family related?
- - what country is the family in, and what status do they have? A family in
Canada might well have a more clear-cut claim than a family in the Dafur
region of Sudan, for instance.
- - the needs of the child. For instance, if the child has a disability (say,
diabetes), the availability of medical care may factor into the decision.
- - immigration laws of the other country. If the child wouldn't even be
allowed to be there, it could weigh heavily against the family.
- - any criminal and similar issues in the family. Even within the US, a
history of child abuse can be a factor for ruling against the family, for
instance.
Bottom line, it will likely be very much a case-by-case decision, but
generally family will be given deference.
[email protected] wrote:
> Thanks Kevin and Folinskyinla for your comments.
>
> While I understand that I need to retain a competent attorney to handle
> this issue, I am wondering what your think will happen to the U.S.-born
> child, if an non-immigrant couple were to pass away suddenly _without_
> leaving a will (which may not be an uncommon scenario given the number
> of H-1B's and L-1's in the U.S.). Do you think the U.S. will _permit_
> a U.S. citizen, who is a minor, to be sent away to a "foreign" country?
> If I make the argument that the U.S. has a duty to protect its
> citizens, the government will have no choice but to send the child to
> an orphanage or to a foster home inside the U.S.
>
> Teich
- --
Please visit my FAQ at http://www.kkeane.com before asking a question here.
It may answer your question. Remember, I am strictly a layperson without
any legal training. I encourage the reader to seek competent legal counsel
rather than relying on usenet newsgroups.
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