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Where to write a will - UK or USA?

Where to write a will - UK or USA?

Old Dec 6th 2012, 2:48 am
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Default Where to write a will - UK or USA?

Hi,
My husband and I are British citizens with permanent US residency (green cards) living in california. We are about to purchase our first house and have our first child and we would like to know how to write our wills. specifically to cover two aspects in the instance that both my husband and I were to die 1) that our child be returned to our family in the uk as their guardians (he will have dual citizenship) and 2) that our assets be left to our child and other family members in the uk.

Therefore my question is: 1) Do I write a UK will, a US will or both 2) how do I ensure that our wishes are legally recougnised in each country 3) where do I start in finding someone to do this for us?!

Any info on what other expats have done in this case would be very much appreciated!
Deb
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Old Dec 6th 2012, 3:39 am
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Default Re: Where to write a will - UK or USA?

If all your property is in the US, I would do the will here. A good family lawyer will draw up a will. My wife and I have assets both in the UK and US, our lawyer charged us $300 each for a straightforward, everything is split between our three sons type will. Two sons live in UK, one in US. Will is legal in both countries.
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Old Dec 6th 2012, 4:05 am
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Default Re: Where to write a will - UK or USA?

This is great info, thank you Not as complicated as I thought!
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Old Dec 6th 2012, 4:38 am
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Default Re: Where to write a will - UK or USA?

As far as the children are concerned you should take advice from a family law attorney regarding the best way of making your wishes known. While you can certainly add wording to your wills indicating your wishes you need to understand that the children are (of course) not "property" and you can't just bequeath them to a new guardian in your will. Your attorney should be able to advise you what the laws and practices in your state are with respect to the custody of minors whose parents have both died.

Note that I don't expect that there would be any real issues with your wishes being carried out but it would be a good idea to just have that discussion with your attorney.
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Old Dec 6th 2012, 6:36 am
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Default Re: Where to write a will - UK or USA?

Originally Posted by DebW
Hi,
My husband and I are British citizens with permanent US residency (green cards) living in california. We are about to purchase our first house and have our first child and we would like to know how to write our wills. specifically to cover two aspects in the instance that both my husband and I were to die 1) that our child be returned to our family in the uk as their guardians (he will have dual citizenship) and 2) that our assets be left to our child and other family members in the uk.

Therefore my question is: 1) Do I write a UK will, a US will or both 2) how do I ensure that our wishes are legally recougnised in each country 3) where do I start in finding someone to do this for us?!

Any info on what other expats have done in this case would be very much appreciated!
Deb
Glad to hear that you're planning for all eventualities on this important matter. I would offer a word of caution however. You say that you wish for your child to live with your family in the UK, however, please remember that if you ever have to invoke your will, then your child will have only known the US, and will have already suffered the trauma of losing their parents, to be ripped from the family home, and from the country they have known may cause further harm.

Obviously, I have no idea how many times your family visits you, or you them, or if you spend extended periods of time back in the UK, and if you intend to do that once the baby is born.
Nor do I know if you intend to be in the US indefinitely.

Anyway, just another element for you to think about.
Oh, congratulations on the new baby!
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Old Dec 6th 2012, 6:22 pm
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Default Re: Where to write a will - UK or USA?

You write a will for every jurisdiction where probate can occur. So say you live in Seattle, have a vacation home in Arizona and have assets in the UK, you write a will that covers all three jurisdictions in a way that makes probate straightforward or a separate will for each jurisdiction.

My personal view is that it is better to have separate wills covering the assets in each jurisdiction, saves confusion. So blah blah who is a resident of X and owns the following listed property and assets in this jurisdiction leaves it to blah blah.

But on the other hand having multiple wills can also cause confusion for your heirs. Depends on the circumstances. For example probate fees, if it is a percentage of the estate then there is motive to have as much of your estate covered by your will in that jurisdiction as possible. But if it is a flat fee, doesn't matter. They'll want to get it over and done with ASAP.
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Old Dec 6th 2012, 9:18 pm
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Default Re: Where to write a will - UK or USA?

Originally Posted by Steve_
But on the other hand having multiple wills can also cause confusion for your heirs.
Unfortunately it can cause confusion with the probate courts as well.

The problem with having multiple wills is making sure that they are all consistent with each other and accurately cover all of your assets.

With a single will it is easy to use inclusive language that covers all of your assets - with multiple wills you have to specify which particular assets each will is supposed to cover and if you aren't careful you may either have an overlap where two different wills could be construed as covering the same assets or you may end up with assets that don't appear to be covered by any will. Also, if you ever revise the will for any reason (but particularly if you want to add or remove beneficiaries) you really need to make sure that you get all of them updated at the same time.

In summary, I tend to think that having multiple wills is, in general, a really bad idea ...
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Old Dec 7th 2012, 3:24 am
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Default Re: Where to write a will - UK or USA?

Originally Posted by md95065
Unfortunately it can cause confusion with the probate courts as well.

The problem with having multiple wills is making sure that they are all consistent with each other and accurately cover all of your assets.

With a single will it is easy to use inclusive language that covers all of your assets - with multiple wills you have to specify which particular assets each will is supposed to cover and if you aren't careful you may either have an overlap where two different wills could be construed as covering the same assets or you may end up with assets that don't appear to be covered by any will. Also, if you ever revise the will for any reason (but particularly if you want to add or remove beneficiaries) you really need to make sure that you get all of them updated at the same time.

In summary, I tend to think that having multiple wills is, in general, a really bad idea ...

Agree completely. There are occasions where you have to do a second will, if you have assets somewhere that does not recognize an out of jurisdiction will. However, that in turn leads to complexities.

While open to fact-based reasons otherwise, I would think that 99%+ of persons only ever need one will at a time.
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Old Dec 7th 2012, 3:28 am
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Default Re: Where to write a will - UK or USA?

Originally Posted by Trixie_b
Glad to hear that you're planning for all eventualities on this important matter. I would offer a word of caution however. You say that you wish for your child to live with your family in the UK, however, please remember that if you ever have to invoke your will, then your child will have only known the US, and will have already suffered the trauma of losing their parents, to be ripped from the family home, and from the country they have known may cause further harm.

Obviously, I have no idea how many times your family visits you, or you them, or if you spend extended periods of time back in the UK, and if you intend to do that once the baby is born.
Nor do I know if you intend to be in the US indefinitely.

Anyway, just another element for you to think about.
Oh, congratulations on the new baby!

This is good advice. An appropriate solution for a six month old child may not be appropriate for an older child and many people do not update will regularly. It may be better to document separately and put in an appropriate qualifier about how circumstances may have changed.

Nevertheless, it is really important to document your feelings about whether you would want relatives to become guardians of your children. It's equally important to document if you do not want particular relatives to become guardians.

If you are going to stay in the U.S. you should consider trying to build a network of people around you who can become good enough friends (and trustworthy enough) for you to discuss whether they could become guardians in the (unlikely) event of both parents dying simultaneously.
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Old Dec 9th 2012, 6:11 am
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Default Re: Where to write a will - UK or USA?

In the US, I'd go with a revokable "Living Trust" and will. Normally you can put everything in a living trust (except deferred tax pensions such IRAs or 401Ks since they could immediately be taxed) and normally probate is not required like a will. If you put your home in the living trust, normally there is an extra charge (about $200) to gather the information needed and to file the extra paperwork.
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Old Dec 9th 2012, 3:12 pm
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Default Re: Where to write a will - UK or USA?

However given that you are probably still domiciled within the UK under UK law, settling property into a California living trust could lead to an immediate liability to UK inheritance tax plus regular future tax and filing obligations.
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Old Dec 9th 2012, 5:32 pm
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Default Re: Where to write a will - UK or USA?

Originally Posted by Cook_County
However given that you are probably still domiciled within the UK under UK law, settling property into a California living trust could lead to an immediate liability to UK inheritance tax plus regular future tax and filing obligations.
Why the "probably" if they are permanent U.S. residents with green cards? Especially if they take out U.S. citizenship once eligible and make a will under U.S. state law.

Obviously it depends on circumstances and whether they have divested of their U.K. assets, but it's not impossible to lose U.K. domicile if you genuinely settle in another country for good. Although there is the 3 year deemed domicile rule.

As to whether a revocable living trust is a good idea, that is one for a California attorney to answer, and possibly from other states if it involves non-California property.
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Old Dec 9th 2012, 10:21 pm
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Default Re: Where to write a will - UK or USA?

Originally Posted by JAJ
Why the "probably" if they are permanent U.S. residents with green cards? Especially if they take out U.S. citizenship once eligible and make a will under U.S. state law.

Obviously it depends on circumstances and whether they have divested of their U.K. assets, but it's not impossible to lose U.K. domicile if you genuinely settle in another country for good. Although there is the 3 year deemed domicile rule.

As to whether a revocable living trust is a good idea, that is one for a California attorney to answer, and possibly from other states if it involves non-California property.
What would you expect HMRC to say about domicile if questioned? What we do know is that under UK case law domicile is very tenacious so to acquire domicile in California would require settling in California with the intention of never leaving and eradicating all connections to the previous domicile, which I have guessed is likely to be one of the countries of the United Kingdom.
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Old Dec 9th 2012, 10:36 pm
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Default Re: Where to write a will - UK or USA?

i don't think it matters much as the op has not re-posted.
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Old Dec 9th 2012, 11:45 pm
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Default Re: Where to write a will - UK or USA?

Originally Posted by Cook_County
What would you expect HMRC to say about domicile if questioned? What we do know is that under UK case law domicile is very tenacious so to acquire domicile in California would require settling in California with the intention of never leaving and eradicating all connections to the previous domicile, which I have guessed is likely to be one of the countries of the United Kingdom.
I would expect HMRC to apply the law.
http://www.hmrc.gov.uk/manuals/rdrmmanual/RDRM22300.htm

It is absolutely possible to lose an U.K. domicile if someone genuinely settles in a new jurisdiction (although, many British expatriates do not).

The advantage, at least from a tax point of view, of liquidating U.K. assets is that it removes the need for any probate in the U.K. Not only a fairly significant indicator of loss of domicile in itself, it also ensures that the question will never be asked.

Last edited by JAJ; Dec 10th 2012 at 12:13 am.
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