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When a foreign resident who lives abroad passes away in a country in The Americas or overseas, and leaves no will, trust or a testament with instructions on how to pass-on property or assets [intestate inheritance]; or when that deceased person dies in another country other than where they legally reside but they leave a will or a testament, it becomes necessary to file an international intestate or a testamentary succession in order to probate that deceased person’s estate.
This is when it becomes necessary to involve foreign inheritance lawyers. Since the decedent-person appears to have left no instructions on how to distribute their property and assets -this is called intestacy or intestate succession/inheritance- a foreign court system must be involved to abide by the general probate rules to transfer that estate to its rightful heirs and creditors with all its assets according to a foreign country’s probate and succession laws. All heirs and creditors will have to seek foreign legal counsel in order to claim the portion that they are eventually entitled to recover.
Types of Assets
Assets in testamentary or intestate inheritances can be real estate, land, farms, air, and maritime vessels, vehicles, and. Also, cars/automobiles, bank accounts, stock shares, jewelry, financial instruments, art collections, cash, and furniture as well as other movable or personal property.
Other less common assets can be a vacation property close to the beach, business offices or commercial real estate, insurance policies, financial instruments such as stocks, bonds, cryptocurrencies in general, such as bitcoins and/or ethereum, gold, diamonds, precious metals, commodities, reserves, vessels, airplanes, helicopters, motorcycles, trucks, international real estate, wealth management accounts, company shares, corporations, farms, lots, land in general, machinery, livestock, pets, exotic animals, fine collections of art, musical instruments, high end clothes, machinery, alternative investments, family office investments, high risk investments such as funds lent to a hedge fund and this never-ending-list can go on and on, and has no limits.
Non-Testamentary or Ab-Intestate Succession
In a non-testamentary or ab-intestate succession, retaining an inheritance lawyer has the ultimate purpose that this licensed professional must seek what is called in most court systems a “declaration of heirs or a final inheritance judgment”. For this reason, the heir-client must assist an inheritance lawyer in providing the necessary information to obtain the following documents. For example, birth, marriage, divorce, legal separation and death certificates that will connect the decedent with each and every potential heir, or the original document that entitles a creditor to collect any existing debt against the decedent’s estate in order for that credit to be valid.
The other documents that all heirs and creditors will need to provide are a special power of attorney specific for representation in a probate court. This is also necessary for tax and selling real estate purposes. Also, an attorney-client agreement that will set the attorney’s fees as well as all the rules governing this legal-business relation. In general, an inheritance lawyer is in charge of drafting these two documents.
The other documents for probate are a color copy of the heir’s passport and any original deeds to real property. Also, forms from the local tax agency and tax stubs for all real property. In addition, a certificate of residence to prove that the heir-client lives abroad. Last, instructions on repatriating funds from a foreign bank account. The funds may be sent to the client’s bank in the United States or wherever that client resides.
When a decedent dies leaving a will, a trust, or a formal testament the rules to follow their inheritance will be different from a non-testamentary estate. This is true as long as the deceased person has not contradicted any general rules of the country’s inheritance laws. Basically, a federal judge should confirm whether this testamentary document is valid and enforceable in the corresponding country.
Otherwise, the testament becomes null and void. The general intestacy rules will be the ones to apply by the foreign court of law. In cases such as these, the heirs will recur to succession litigation to inherit what’s theirs.
Estate Litigation worldwide can be an unpleasant experience for someone not used to litigation. Mainly because it consumes the heir’s funds and precious time. However, our firm always recommends this stage to be an absolute last recourse. Mediation and “out of court settlements as well as negotiation” are always our firm’s usual course of action. Otherwise, our firm has a proven record of success regarding Estate, Probate, and Succession’s Litigation in the Argentine Republic.
Foreign Inheritances will always have tax implications which may include local or domestic consequences or even be of foreign or international nature with more than one tax authority such as one from Latam such as AFIP, DGI or Hacienda and the Internal Revenue Service in the United States of America (IRS-USA) or the HMRC-UK (Honorable Majesty, Revenue & Customs with the United Kingdom) or Canada’s Revenue Agency just to mention a few. Some countries share International Tax Treaties in terms of double taxation with countries in South, Central, and Latin America. However, this doesn’t happen with most countries. Thus, a local and licensed tax lawyer, a CPA, or even a local tax preparer may provide sound advise regarding these matters.