International estate planning involves a range of considerations that extend far beyond typical domestic planning. Having worked with international families throughout Silicon Valley for over 30 years, I’ve learned that the biggest concerns often center around protecting children and ensuring families can stay connected across borders.
I recently had the opportunity to discuss some of the most pressing issues I encounter with international clients, particularly those related to guardianship of minor children, emergency planning, and financial protection strategies, as a guest on the Absolute Trust Talk podcast alongside host and fellow estate planning attorney Kirsten Howe. We examined the practical realities of cross-border estate planning and explored why certain approaches are more effective than others. If you’re dealing with international family dynamics or cross-border assets, this conversation covers the analytical thinking required to create plans that work effectively when needed most.
Time-stamped Show Notes
0:00 Introduction
3:41 One of the biggest concerns for international clients is ensuring their children can return to their family in their home country in the event of an emergency or unforeseen circumstances.
4:43 Did you know that while California allows foreign guardians, requirements vary significantly by state.
6:40 Listen in now as we discuss the critical distinction between technical jurisdiction and actual enforcement power when children leave California for another country.
7:54 Next, we talk about how issues with out-of-state guardianship exist even within the United States, creating similar concerns to those found in international guardianships.
9:41 Temporary guardianship arrangements are needed to bridge the gap when appointed guardians live far away. Press play now for everything you should know.
11:51 Let’s dive into the analytical perspective that international guardianship is “a question of degree, not difference” compared to distant domestic guardianships.
12:17 Now, let’s talk about some potential complications when children are taken across borders without judicial approval.
14:31 Why trust documents need specific instructions for authorizing payments to guardians for travel expenses, like programming software with detailed commands.
16:36 Many people don’t realize that life insurance provides crucial financial liquidity for international families, offering guaranteed amounts without the concerns of market timing.
Transcript:
Hello and welcome to Absolute Trust Talk. I am Kirsten Howe, and I’m the managing attorney at Absolute Trust Council. I’m glad you could join us today for this episode of our podcast. Despite the current president’s efforts to prevent immigration into our country and to deport immigrants out of our country, the fact is that we do have a lot of people in this country, especially in California, especially in the Bay Area, who immigrated to our country from somewhere else. And those people also need to do estate planning, and often want to do so, presenting unique issues that we need to focus on—issues that we don’t typically need to address with clients who have no relevant international ties.
That’s what we’re going to be talking about today: some of those questions that come up during estate planning when our clients have international issues. And joining me in that conversation is my esteemed colleague, Janet Brewer. Welcome Janet.
Janet Brewer is the principal of the Law Office of Janet L. Brewer, and she’s headquartered in Los Altos, California. Janet has served clients throughout Silicon Valley and the Bay Area for more than 30 years. She is a certified specialist in estate planning and probate, certified by the state bar as a specialist, and very accomplished. In addition to holding a bachelor’s degree and a JD, she also possesses an MBA and an LLM, a graduate-level degree for lawyers typically earned after completing law school.
Because she’s located in Silicon Valley, she frequently deals with and has developed deep experience with international estate planning situations. Approximately a quarter of her practice focuses on helping non-resident aliens, visa holders, green card holders, and other international families plan for their U.S.-based assets. As a member of STEP, which is the Society of Trust and Estate Practitioners—and we’ll talk a little bit about that—it’s an invitation-only group of estate planning professionals with special knowledge in international estate planning. She regularly prepares estate plans for foreign nationals who own property or live in the US and for US citizens who own property abroad. She has that specialization, which is why she’s here today. And she’s been on my list of potential guests for a long time. Finally got her here. Welcome, Janet, and thank you so much for being here. I really appreciate it. Thanks, Kirsten. I appreciate you having me.
Okay, so we’re here to talk about international estate planning issues. And one thing you said to me as we were preparing for this episode, which I really liked and is true, but I hadn’t really thought about it, is that really, for all of our clients, we have to focus on not just the law, but on how the plans will work on a practical level. An example of that in the international context is the issue of guardianship, which is an important component of estate planning. If people have minor children, we have to talk about it, but there are other things we also have to talk about when it’s an international kind of case. Why don’t you walk us through some of, you know, like a typical scenario, and the issues that have to be addressed in that scenario?
The biggest thing that my international clients, especially the ones who are here on visas, are worried about really is the guardianship of their children. They want to make sure that if something happens to them, the children can get back to living with, you know, their parents or their siblings, back in whatever country it is that they’re from.
And let’s talk about the practicalities of that, because that’s what you really kind of have to focus on when the client’s sitting there with you. Can a non-US citizen, or even a non-US resident, be appointed a guardian of a child who is here in the US, possibly born in the US, a US citizen? Can a foreigner be appointed by the court to be a guardian?
That answer varies with the state that is dealing with the guardianship. In California, the answer is yes. In some other states, the courts will not even appoint someone who is not a resident of that state. Okay, so for example, I believe—I haven’t looked at this in a number of years, but when I was looking into it some time ago—Illinois, for example, will not let someone who is not an Illinois resident become the guardian for the children. The guardian must live in the state of Illinois.
But in California, the law will allow foreign guardians to be appointed, whether it’s, you know, from a different state or it’s from a different country. As you know, again, not to nerd out too much, but in every guardianship, a court investigator is appointed to look into the guardian’s background and make sure that it’s an appropriate individual for the child to live with. They don’t want to put the child into a drug dealer’s home. They don’t want to put the child into, you know, some other felon’s home, things like that.
There is actually a court employee who investigates everyone involved when they’re dealing with a foreign guardianship, even if it’s a close relative. They are much more careful because once the child leaves California and goes, you know, to England or to Israel or to Hong Kong, or even to Canada, the court is not going to have jurisdiction over that person. They’re not going to be able to get the child back and rescue them from a bad situation.
Well, yeah, I mean, they still have jurisdiction over the guardianship, but they don’t have any ability to, you know, send law enforcement out or anything.
Yeah, you’re right. I mean, that’s definitely a distinction. Technically, there’s jurisdiction, but there’s no enforcement—no actual power.
And you know, frankly, I mean Kirsten, you encounter this in your own practice every time you have a client who wants to appoint a guardian who lives out of the state of California. The court also has jurisdiction, but its enforcement powers are very limited when any child is removed from the state of California. Now, if they’re within the United States, obviously it’s a little bit easier to figure out an enforcement mechanism or to, you know, get the sister state to cooperate.
Exactly. We have the FBI, and we have reciprocity, and the states work together. Exactly. We can’t necessarily say that about Hong Kong, Malaysia, or even England. Those are, again, even Canada. I mean, we have no enforcement, especially now, especially now. So exactly. I think that, frankly, a lot of attorneys encounter this, and they don’t necessarily think about what the ramifications are if they name somebody that’s just in Nevada or in Oregon or in Arizona as the guardian. It’s going to be a more thorough vetting process. It’s going to take more time.
And that brings up another really important consideration when we’re talking to our clients about guardianships, and they’re thinking about some international type of person, is the timing. If these situations arise where a child needs a guardian because something terrible has happened—the parents have suddenly passed away or become incapacitated—and you and I both, I’m sure, provide for that in our documentation, that there might be a lag between when the officially nominated guardian can get to the child physically, and we might have to designate some alternate who we’re not saying is our nomination for guardian, but this person can take custody of our child, so that CPS doesn’t have to come into the picture. But with an international person, there’s probably even more issues that need to be addressed in that period of time between when they can get to the child.
Right. And again, I think, it’s not a lot different than if you’ve named a guardian who lives in New York. What I tell people is that if a guardian lives more than two hours away, and something were to happen to the parents, the guardian would not be able to pick the child up from childcare. They’re not going to be able to relieve the teenage babysitter that they’ve got watching the child. And there needs to be some sort of temporary guardianship that is put in place.
It’s almost the same. I don’t know what you do in your practice. In my practice, I have a form that’s very much like the form that you give the kids when they’re going to be going on a school trip where you’re giving some adult that is the chaperone the right to provide emergency medical treatment to take care of the child until the parents get there.
And I’m actually pleased to report that, although I hope it’s true for you as well, this has not been a major issue in my practice. It has arisen a handful of times. But, you know, it’s a handful of times over 30-plus years, so one in every 10,000 cases, or something along that line. But nonetheless, you have to prepare for it, and it’s mostly making sure that Child Protective Services feels comfortable that they can give custody of this child over to this other person, rather than take the child into foster care. So, yeah, a responsible adult who lives nearby, who can care for the child for a couple of days until the other person gets here. But again, the international guardianship, in my mind, is a question of degree, not difference.
That’s a good point. Yeah, it really is not unlike a guardian who has to come from Alaska or Delaware. It’s not any different from that. It might take 13 hours instead of eight hours, but whatever, right?
But also, I’m sorry, go ahead. No. Well, I was going to say no, you go ahead.
What I was going to say is that, you know, again, just like if they’re coming from Alaska, Delaware, New York, they’re not going to be able to basically tell the kids, “Come on, kids, let’s pack a bag and let’s head back home.” If they take the child over state borders without having judicial approval, now we do have the FBI involved, especially if—and I’m sure you’ve never encountered this in your practice—Mom wants her sister to be the guardian, Dad wants his brother to be the guardian, and whichever one gets there first decides to take the child back to whatever state that they’re going to. You may very well have a custodianship or a guardianship battle on your hands, and the court is going to get involved and law enforcement could also get involved at that point, because now you’ve got this person who’s taken the child out of the state without permission, and there’s someone who’s objecting to the fact that that happened.
Again, it’s extreme. It doesn’t happen often, but as I tell people, it’s our job to think of the things that might happen, and let them decide for themselves whether they want to take that risk after we’ve informed them of what the risks are and what the consequences are.
That’s right. That is exactly our job.
Let me ask you this also. I think that when we have a situation where the guardian may need to travel, we should address this in the other documents. The trustee perhaps needs to be specifically authorized to pay for that travel and maybe make interim distributions to that guardian, maybe also to the temporary guardian. There’s money for the child, whoever the child is with, there’s money to take care of the child. These are things that, if the guardian lives in the same city, we don’t think about as much.
Right, yeah. I mean, again, to a certain extent, there are some differences, but to a certain extent, it is a question of degree. I tell people I have a lot of engineering clients because I’m in Silicon Valley. I tell people that it’s somewhat like a software program, in that it can only execute the instructions it’s given. And if you have not specifically said to the trustee, “You have the authority to pay this money to someone other than the beneficiary, other than the child,” they’re violating the terms of the trust, and they really, although there’s nothing stopping them, they really should not do it, because they could get in trouble if someone were to question, “Why did you pay out, you know, $10,000 for plane fare for somebody to get here from London on the next available flight?” There’s no authority in the document itself to make payments to anyone other than the child.
Yeah, I love that analogy. It’s like software—I never thought of that. That’s a very clever way to explain that, and I’m going to steal that, I think.
You’re more than welcome to steal it, because it’s true. I mean, if the instruction isn’t there, it can’t be executed.
I like that. One other thing I think you mentioned in the typical scenario you encounter, where your client is a visa holder, is that they may only be here for a short while. They’re planning to go back, or maybe they’re just starting out, but they do have children, and they just really haven’t yet accumulated a lot of wealth. And I think you know where I’m going with this. How do we help them with that issue?
Well, one of the things that I suggest, and I think this is where you’re going with that—I’m not 100% sure, but this is an area where I think that life insurance plays an important role, among other things. Sometimes, you know, again, if they’ve got stock, they may not be able to cash it out that quickly, even if there’s a successor trustee in place. The brokerage firm may require that, before they actually accept the successor trustee, they may want to see a death certificate that shows that the person that they’ve got listed as the initial trustee is now deceased, and this other person is in place. It can take four to six weeks to get a death certificate, especially these days.
But, and this isn’t a 100% solution by any means, but life insurance typically pays out much more quickly. You don’t have to worry about whether you are selling stock at the bottom of the market. And maybe if you had been able to wait a few days, you know, the tariff rate had come down—wait till this afternoon, when it goes from 145% down to 30%—you know, maybe you could have gotten a more favorable price for the stock. And again, as a trustee, you have a duty to look at some of those things.
Yeah, you have to worry about it. The good news about life insurance: it may still take a couple of weeks, they may still want to have a death certificate, but at least you don’t have to worry about, “Am I selling this stock at the bottom of the market, and now there’s going to be less to take care of the beneficiary?” If you’ve got a $100,000 life insurance policy, you’re going to get $100,000 regardless of what the market is doing. If you’ve got a $500,000 life insurance policy, you’re going to get $500,000 regardless of what the stock market is doing. So, it is a stable form of currency that you can cash in when it’s necessary, and to have the money readily available to take care of the child’s bills, and also the guardians ‘ bills.
We’ve only just scratched the surface, with all of this, and we could go on and on, and I think that we will, but we’re going to do that in a future episode, not right now. Janet Brewer, thank you so much for being here and discussing this aspect of international estate planning with me.
Thanks, Kirsten, I really appreciate the opportunity. It’s great to talk to you.
And thank you all for joining us here today. I hope you learned a lot. I know I certainly did, and I look forward to connecting with you next time.
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