One of the most common mistakes I see in my practice happens when well-meaning US citizens assume their domestic estate planning will seamlessly handle their foreign property. I’ll be direct: it won’t. After decades of working with international families, I can tell you that the phrase “I give my property in France to the trustee of my trust” is a recipe for disaster—because France doesn’t recognize trusts.
In the final part of my conversation with estate planning attorney Kirsten Howe on Absolute Trust Talk, we tackled this widespread scenario that affects many Silicon Valley families who own property abroad. Whether you’ve inherited a cottage in England, own investment property in India, or have family assets in China, the approach to protecting these holdings requires understanding which countries recognize trusts (spoiler: it’s mainly former British colonies) and which don’t. We explored practical solutions, including the Hague Convention on International Wills, strategic “situs wills,” and why working with qualified attorneys in foreign jurisdictions isn’t optional—it’s essential. If you’re a US citizen with foreign property, this conversation provides the framework needed to ensure your wishes are actually honored across borders.
Time-stamped Show Notes
0:00 Introduction
2:27 To get things started, we’re discussing why countries don’t recognize trusts, which renders standard US estate planning ineffective for foreign property.
3:04 Which countries DO recognize US trusts? Primarily, former British colonies, such as England.
3:08 The Hague Convention on International Wills – a treaty that allows properly formatted wills to be honored across participating countries.
5:57 Most clients have their primary assets in the US but own a “little pocket of assets” overseas; so, how should they plan?
7:03 Next, we discuss strategic will drafting and how to structure wills to effectively handle both US trusts and foreign property distributions.
10:07 Pro Tip: It is highly recommended to work with an attorney in the foreign jurisdiction – forced heirship laws and other local requirements can override your US planning.
11:10 STEP: The Society of Trust and Estate Practitioners – your go-to resource for finding qualified international estate planning professionals.
12:53 How STEP membership requirements vary by country, with stricter vetting in the UK compared to more relaxed US standards.
Transcript:
Hello and welcome to Absolute Trust Talk. I’m Kirsten Howe, the managing attorney at Absolute Trust Council, and today we are wrapping up our conversation with my guest, Janet Brewer, about international estate planning. Just a reminder, if you missed our previous episodes, I encourage you to go back and listen to the first two episodes featuring Janet. To give you some background, Janet is a colleague of mine, and we’ve known each other for a long time. She is based in Los Altos, where her firm, the Law Office of Janet L. Brewer, operates. Janet has been practicing law in the Bay Area for over 30 years and specializes in working with clients who have international estate planning issues. Being in Silicon Valley, she tends to attract many clients involved in such circumstances, including those here on work visas, as well as individuals who have resided here long enough to become green card holders or citizens. This region draws a significant number of foreigners seeking employment in the U.S. Janet has developed extensive expertise in assisting these clients, and I’ve wanted to have her on for quite a while to discuss these matters. We have covered several topics in previous episodes, but one key scenario I want to discuss with you, Janet—welcome, by the way; thank you for your patience while I elaborate—concerns the common situation we encounter in our practice here on the other side of the Bay. Many clients are U.S. citizens but own property in another country. This may be due to their parents living there, for example, inheriting property after their parents have passed away or other reasons. They might own real estate in countries like India, China, or elsewhere. So, what support do we offer these individuals? What advice do we provide them?
Well, there’s some advice that I guess is just general. I’ve encountered people, and quite frankly, I have to admit that early in my career, I did it myself, who have put into their wills that I give my property—let’s use France as an example— to the trustee of my trust to be distributed according to the trust. However, France doesn’t recognize trusts.
Right? So that’s a problem from the get-go. As a general rule, the only countries that actually recognize trusts tend to be the former British colonies. Germany doesn’t have a trust concept. China doesn’t have a trust concept. Many countries lack trust concepts. Going back to international law, if you will, you’ve probably heard of The Hague Conventions. Sure, The Hague treaties are numerous; I don’t know, a couple of hundred treaties exist. One of those treaties is the Hague Convention on International Wills. There actually is a treaty that the US and several other countries have signed, stating that if you’ve got a will following this format, even if it doesn’t comply with the requirements that our country has for wills, we will honor that will in our country. And Kirsten, it’s actually embedded in the California Probate Code. There’s a section of the California Probate Code that outlines the exact language the international will must contain, and it follows the wording in the Hague treaty, or the Hague Convention on International Wills. So what I often do is create an international will for people with the idea that it is likely going to be admitted to probate in that other country. Now, we still can’t do things like say that our, you know, even if it’s England, we can’t state that the cottage we’ve got in the Cotswolds is going to be put into the trust and distributed under the trust. It needs to be specified; the cottage in the Cotswolds goes to my sister who lives wherever it is she resides. But we can at least get the will admitted to probate in the foreign country and, again, avoid intestate succession. I might want everything to go to my one sister, but I have three siblings. Without a will, the asset in that country would go to all three of them. So with that will, I can specify I want it to go to this sister. You still run into a bit of an issue with who has the original will and everything. You know, there’s only one original will. The person probably doesn’t only have assets in England. I’m sure you’ve encountered this, really.
They probably have most of their assets here, right? But they’ve got that little pocket of assets somewhere else. Yeah, right.
So, what do you do? There’s one will in two countries. Under California law, as you know, we lodge the will, even if everything’s in the trust, with the probate court where it’s supposed to be lodged. We then have to go through a procedure to quote, unquote, localize the will or legalize the will in the other country. Just as California says, we want the original will; the High Court of Wales and England, I believe, also requires the original to be present. Once you’ve lodged it in the United States, you can’t take it out of court and magically make it appear overseas. There is a process that we go through to essentially prove that the will is valid and have the copy admitted in the overseas jurisdiction.
So in that scenario where, let’s say there’s a cottage in England that you want your sister to have, but you have a trust in the US, we generally want our clients to have a pour-over will stating, “I leave everything on my death to my trust.” Now I’m really getting nerdy, and it’s just us girls talking, but would you write the international will to say, “I’m leaving this cottage to my sister and I’m leaving everything else to my US trust?” Basically, that’s what I do. I guess the short answer is yes; I usually do it a little differently. I state that I’m leaving everything to the trustee of my trust. However, if for some reason my trust is not acceptable in the country where it’s being probated, then I leave the property to these individual beneficiaries. So, it’s really just a question of wording; you put it this way, I put it that way. Ultimately, it accomplishes the same thing, regardless of which comes first. Okay, the other thing I was going to mention is that sometimes, to overcome the problem of getting the wills admitted in both countries, I take a different approach. This is not part of the international convention, but something you’ll hear discussed in international circles is called a situs will, S-I-T-U-S, from the Latin word for location. So, I might create a will that states this will is designed to cover only my assets in the United States. I revoke all previous wills and codicils pertaining to my assets in the US, but I affirm any wills I’ve made that cover my assets in other countries. Depending on the client, I’ll then work with an attorney in that other country to ensure they create a mirror image will stating this will is only designed to cover my assets in England. I revoke all previous wills and codicils regarding my assets in England, but I affirm the terms of any wills from another country that I may have created. Then, when the time comes, the person takes the US will and files it with the local court, and it gets probated here. Meanwhile, there’s another will that hopefully someone takes to the High Court of whatever country we’re dealing with to ensure that will is probated in accordance with that country’s laws.
I think you impliedly brought up an important point indirectly. This is what I tell my clients in a similar situation. We’re working on an estate plan here in the U.S. because they live here, have assets, and also possess these assets overseas. It’s essential to consult with an attorney in that jurisdiction, as there may be various legal aspects we are unaware of that are unique to their laws. For instance, some countries have forced heirship laws, so you can’t assume that what you decide will actually be effective. It’s crucial to consult and collaborate with an attorney in that jurisdiction, right? Yes, and Janet has resources.
Yeah, there’s an organization called the Step Society of Trust and Estate Practitioners. It was actually founded in England, and if you check their directory, I would estimate that around 40% of the members worldwide reside in England. However, it has branches in most other countries. There may only be one or two members in those places, but it does have branches in various countries. You can actually visit the website step.org, that’s S, T, E, P, dot, O, R, G, and look for the member directory. Enter the name of the country where you’re seeking an attorney. If there’s a member, their name or several names will appear. In England, there are so many members that I think, in some areas of London, like the East End, there are enough attorneys that they’ve formed their own chapter. Similarly, the West End has another chapter. It is a very good resource if you need to find an attorney. Additionally, they have financial advisors and accountants. I have many clients who need a foreign accountant because they’re either living outside the United States or have investment properties abroad, and, of course, they also have attorneys, all of whom meet the membership requirements for STEP.
So, it’s like an estate planning council, but it’s exactly, yes, it’s exactly, well, it is, and it’s not. Again, I’m telling tales out of school. Let’s say that the requirements for membership in the United States are much more relaxed than they are in the UK. We’re getting tougher. STEP has now been around for about 13 or 14 years in the US, so they are starting to basically make you—it’s kind of like renewing your specialist license, where you have to get referrals from other people who verify that you’re doing a certain amount of estate planning or international estate planning. The US hasn’t gone that far yet, whereas the UK has. Different countries really ensure that the members are vetted and very familiar with some aspect of international practice. Okay,
Interesting, but it is a good resource. Thank you for sharing that with our listeners. Janet, I want to express my gratitude for your time and expertise that you’ve provided over these last three episodes. I greatly appreciate it. Thank you; it’s been a real pleasure. Thank you for listening and watching, and I hope you learned a lot. I know I did. I look forward to connecting with you next time.
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