Estate planning for foreign nationals living, working, and owning property in the United States.

It may come as a surprise to foreign nationals working in the United States that they should consider drafting a Will and other estate planning documents here in the U.S. This is especially important for anyone who has a bank account, home, or brokerage account here—and those whose children are living with them in this country. They may think, “But I have a Will in my home country. Why would I need one here?” Actually, they might not. Washington generally recognizes a “foreign” Will (one created in another state or country) if that Will is considered valid in the home country. If they have a foreign Will, they should have the original Will here with them. And if a foreign national has no Will at all and plans to spend some time in Washington, they might want to consider drafting a Will while here.

For a foreign national who dies owning Washington personal property of a certain value, or Washington real estate, opening a probate estate in Washington usually is necessary to distribute that property to the proper heirs or beneficiaries. Additionally, if the foreign national dies while in Washington, the person’s home country may require that probate (the legal process to establish the validity of a Will and to appoint someone to manage a deceased person’s estate) be initiated in Washington because that is where they most recently lived.

If you are a foreign national in Washington for more than a few weeks, having a Will while here (whether drafted here or in the home country) makes it more likely that your wishes will be known and carried out if you were to die here. Regarding such assets as institutional financial accounts—if beneficiaries are designated properly on these assets, those beneficiary designations usually will be recognized. However, if no beneficiaries are named, or a named beneficiary is no longer living, the asset probably would go to the person’s estate. At that point, the financial institution may require that probate be opened for beneficiaries to access the money.

Having a Will while here is particularly important for a foreign national in Washington with minor children also here. If that person dies without a Will that designates a guardian for the children after their death, and that person and the children have no relatives in Washington, the children might end up in foster care, at least temporarily until a legal guardian is appointed. If, on the other hand, an easily located Will exists that designates a guardian, the guardian could be contacted more quickly.

In addition to having a valid Will in this state, foreign nationals are encouraged to have several other local estate planning documents, including Durable Powers of Attorney, Health Care Powers of Attorney, and Directives to Physicians.

A Durable Power of Attorney names an individual or professional fiduciary to make decisions and have the powers outlined in the document on behalf of the document’s creator. Often, the DPOA is “springing,” meaning that it becomes effective only after some event happens. If no Health Care Power of Attorney for an incapacitated individual exists, health care organizations generally turn to the next of kin, such as a spouse, children, parents or siblings, to make critical decisions.

However, sometimes these closest relatives are not the ones the person receiving care would choose. A Health Care Power of Attorney attempts to ensure that these decisions are being made by someone specifically chosen by the incapacitated person prior to incapacity.

Finally, a Directive to Physicians outlines a person’s wishes for end-of-life health care when they is unable to make their own decisions. It allows individuals to decide ahead of time on the nutrition, hydration, pain medications, and other interventions they would want at the end of life if they are unable to answer those questions for themselves.

Bottom line? Foreign nationals living in the U.S. who want to ensure, as much as possible, that they are in control of what happens to them and their assets if they become incapacitated or die while living here should consider having all of these estate planning documents. If you have questions about estate planning, give us a call at 253.858.5434 to set up an appointment today.