When the Probate Laws of Multiple Jurisdictions Apply.

When the Probate Laws of Multiple Jurisdictions Apply. – Complications arise when administering the estate of a deceased California resident who was once a citizen of a foreign nation or the estate of a deceased non-resident of California who owns real property in California.  Let us discuss.

Consider a deceased California resident whose last will was validly executed outside California, be it in another state or nation.    California law recognizes a will executed in another state or nation to be valid (enforceable here) if it was executed in accordance with the laws of the place of its execution; California law; or the Uniform International Wills Act.  Thus, a validly executed foreign will can be probated in California.  If the will is not written in English it needs to be translated to be admitted in Court.

A California court probate order can distribute all real property within California and all personal property anywhere within the United States.  However, any real property located outside California and all property located outside of the United States is controlled by the laws of the state or foreign nation where it is located.

Consider, for example, a German citizen who moves to California, establishes a new permanent residence, i.e., becomes a U.S. citizen or resident alien, acquires real and personal property in California but still retains some real and personal property back in Germany.  What are the possibilities when he or she dies?

If the decedent’s last will was the one he or she validly executed in Germany then that German will may be probated both in California and in Germany.  If the decedent, however, executed a new will in California and revoked the prior German will, then the California will controls the transfer of all real property located in California and all personal property located anywhere within the United States.

The laws of Germany, however, would still apply to the disposition of property located in Germany and to the admissibility of any California will in German courts.  Therefore, a court proceeding in Germany is required to transfer title to property over there.

Moreover, German laws regarding inheritance rights of family members will override any gifts made in the decedent’s California will that may violate such German laws.  Specifically, the German law requires that a certain percentage of a decedent’s estate go to the decedent’s issue whereas California has no such requirement; a person can leave all of his or her property to whomever he or she pleases.  Thus, German law would override the California will and redirect some property inside Germany if necessary.

Now consider a deceased person who was not a California resident but who owned some real property in California.  That person’s foreign will can be admitted to probate in California if an authenticated copy of the foreign will and, if relevant, the foreign Court’s probate order are properly introduced in the California Superior Court with a Lake County probate attorney.

Furthermore, a non-U.S. person cannot serve as the Administrator of a deceased person’s estate in California, where the decedent did not leave a will or did leave a will but no one nominated under the will as Executor is willing to serve.  However, a non U.S. person may serve as Executor if they were named as Executor in the decedent’s will.  Thus, where an Administrator is needed, because there is no Executor, a California licensed Private Fiduciary is typically appointed by the court to administer the decedent’s estate.

Most people, of course, wish to avoid probate. A California resident with real property located elsewhere in the United States can usually avoid probate issues anywhere in the United States by transferring title to all real properties into a trust.  A trust created under California laws will be respected in all states.

In sum, a California resident with real property outside the U.S. needs attorneys in both California and in that foreign country to assist them with their estate planning.  The same applies to a California resident who is also a foreign national who has real and/or personal property outside the U.S..