A will for Canadians living in USA

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A will for Canadians living in USA


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Old 30th September 2018, 04:41 AM
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Default A will for Canadians living in USA

Hello,

I have a few questions that I'd like to know about making a new will. My Canadian husband and I've been married in Thailand but have moved/lived in different countries due to his work. I'm originally a Thai citizen but I am a Canadian citizen as well. When we lived in Canada, we made the first will (part of the will was the house that we bought together but it was sold after we moved to the US). Now we are thinking to make a new will (2nd will) because there are a few changes such as selling a house, moving CAD$ from Canadian banks to US banks and so on. This means we have no CAD$ income to report in Canada since we are living/working in the US and that we will report our income/funds in the US mostly. Whatever small amount of CAD$ funds that we couldn't move, they still stay in the Canadian banks as non-Canadian residents when filing taxes in Canada. Now we are in the US and most funds are in the US banks and US stocks as well as my husband's retirement saving plans (my husband also has his Canadian retirement saving plans as well but it stopped since we moved out of Canada. Those amount still stays there in Canada with the gov). Here are my questions;


1. Since we've been living in the US and all the matters as mentioned above, where should we make a new will either in the USA or in Canada? (We're concerned about most funds are in the US but we are Canadians (I'm a dual citizen but entered the US with my Canadian passport). We're not sure where to make in case if one of us/two of us die or divorce in the future, we don't want the estate to be involved since we are not living in Canada and funds are mostly in the US. Just wondering about Int' estate conflicts and other law conflicts related.

2. If something happens either one of us die, two of us die or we divorce, what would that be/happen with the will in the US if we make a will in the US or if we make a will in Canada while living in the USA? Will that go to our kids easily without other third party involved if kids are less than 18 years old, or should we need to designate an executor for managing our funds to the kids?

3. I'm open to any recommendation. I'm just afraid of conflicts with our funds, our status living in the US (we are on a business visa sponsored by my husband's work; my husband is L1, mine is L2 with work permit), our kids, Int' law conflicts (when it comes to decease or divorce) in the country we were not born with. I heard that a will could be made anywhere, it doesn't matter where the (most) funds/estates are. Not sure how that works if something happens in the future.


Your help is highly appreciated.

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Old 30th September 2018, 07:03 AM
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The key thing isn't where you have your nationality (with a few exceptions) nor where you make your will - but rather where you are resident when you die. Then, too, I think you probably need to make your will where you are resident (though I'm not sure about that).

In any event, your estate will be subject to the inheritance law of the place you are resident when you die. The big exception is for real property (land and buildings) which are usually subject to the law for where they are located. Funds and financial accounts are generally subject to the law in the country where you are resident at your death.

And in the US, there is the added complication that inheritance law varies from one state to the next. In many states, there are certain minimums that must be passed to a spouse and/or children, as well as default rules for dividing up the estate if someone dies without leaving a will.

Should you divorce at some point, there will be a property settlement, independent of any will you may have - and at that point you should definitely re-do your will to recognize your change in situation.

It's all a bit complicated and probably worth a visit to an attorney to see what rules apply in your particular case in the area where you are currently living.
Cheers,
Bev

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Old 5th October 2018, 02:54 PM
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Quote:
Originally Posted by venus13 View Post
Hello,

I have a few questions that I'd like to know about making a new will. My Canadian husband and I've been married in Thailand but have moved/lived in different countries due to his work. I'm originally a Thai citizen but I am a Canadian citizen as well. When we lived in Canada, we made the first will (part of the will was the house that we bought together but it was sold after we moved to the US). Now we are thinking to make a new will (2nd will) because there are a few changes such as selling a house, moving CAD$ from Canadian banks to US banks and so on. This means we have no CAD$ income to report in Canada since we are living/working in the US and that we will report our income/funds in the US mostly. Whatever small amount of CAD$ funds that we couldn't move, they still stay in the Canadian banks as non-Canadian residents when filing taxes in Canada. Now we are in the US and most funds are in the US banks and US stocks as well as my husband's retirement saving plans (my husband also has his Canadian retirement saving plans as well but it stopped since we moved out of Canada. Those amount still stays there in Canada with the gov). Here are my questions;

Quote:
Originally Posted by venus13 View Post
1. Since we've been living in the US and all the matters as mentioned above, where should we make a new will either in the USA or in Canada? (We're concerned about most funds are in the US but we are Canadians (I'm a dual citizen but entered the US with my Canadian passport). We're not sure where to make in case if one of us/two of us die or divorce in the future, we don't want the estate to be involved since we are not living in Canada and funds are mostly in the US. Just wondering about Int' estate conflicts and other law conflicts related.
It is easier to work through probate with a local will. How do you plan not to have the state involved?
Depending on size of the estate you can always look into various trust options.

[quote=venus13;14669750]
Quote:
Originally Posted by venus13 View Post
2. If something happens either one of us die, two of us die or we divorce, what would that be/happen with the will in the US if we make a will in the US or if we make a will in Canada while living in the USA? Will that go to our kids easily without other third party involved if kids are less than 18 years old, or should we need to designate an executor for managing our funds to the kids?
If you divorce your L2 ends and you have either 10 or 30 days to leave the US.
If your spouse passes your L2 and that of the children ends.

Quote:
Originally Posted by venus13 View Post
3. I'm open to any recommendation. I'm just afraid of conflicts with our funds, our status living in the US (we are on a business visa sponsored by my husband's work; my husband is L1, mine is L2 with work permit), our kids, Int' law conflicts (when it comes to decease or divorce) in the country we were not born with. I heard that a will could be made anywhere, it doesn't matter where the (most) funds/estates are. Not sure how that works if something happens in the future.
Divorce has nothing to do with country of birth but country of legal marriage.
As legal residents though on visa your wills will be probated. There are agreements with CAN.[

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Old 8th October 2018, 04:06 PM
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Originally Posted by Bevdeforges View Post
The key thing isn't where you have your nationality (with a few exceptions) nor where you make your will - but rather where you are resident when you die. Then, too, I think you probably need to make your will where you are resident (though I'm not sure about that).

In any event, your estate will be subject to the inheritance law of the place you are

resident when you die. The big exception is for real property (land and buildings) which are usually subject to the law for where they are located. Funds and financial accounts are generally subject to the law in the country where you are resident at your death.

And in the US, there is the added complication that inheritance law varies from one state to the next. In many states, there are certain minimums that must be passed to a spouse and/or children, as well as default rules for dividing up the estate if someone dies without leaving a will.

Should you divorce at some point, there will be a property settlement, independent of any will you may have - and at that point you should definitely re-do your will to recognize your change in situation.

It's all a bit complicated and probably worth a visit to an attorney to see what rules apply in your particular case in the area where you are currently living.
Cheers,
Bev

Sorry for a late reply. Thank you so much. I was wondering about a residency too but we will be in the US for 3-5 years. Unless we make a will in the US to cover our stay for 3-5 years, we revise the will again when/where we move next (perhaps back to Canada where we are from). Do you think this way would work better?

What about the heritage taxes and so on in the US? We live in Louisiana so it’s a bit complicated with all kinds the US taxes have. Any recommendation?

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Old 8th October 2018, 04:19 PM
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Quote:
Originally Posted by venus13 View Post
Sorry for a late reply. Thank you so much. I was wondering about a residency too but we will be in the US for 3-5 years. Unless we make a will in the US to cover our stay for 3-5 years, we revise the will again when/where we move next (perhaps back to Canada where we are from). Do you think this way would work better?

What about the heritage taxes and so on in the US? We live in Louisiana so itís a bit complicated with all kinds the US taxes have. Any recommendation?
Whether you want to make a new will for each place in which you live is kind of up to you. Depends on your ages, whether or not you have children or other family members you want to provide for and to what extent your financial desires line up with the default inheritance option in the place where you are currently living.

Louisiana can be complicated because the state inheritance law is similar to that here in France (where I live).

It may be possible (you'd have to ask an attorney) to make a will in Canada, if that's where you consider your long-term home to be, and then see if you can have your Canadian will incorporated into a simpler will in Louisiana (or anywhere else you wind up living for only a few years). It's not always a possibility, but you can certainly ask the question.

As far as the taxes go, you can expect to pay inheritance taxes based on where you are resident when you die. The one exception is if the deceased owns real property (land or buildings) in another state or country, in which case the inheritance taxes for the place where the property is located usually take precedence.

This page on the intestate laws in Louisiana may give you an idea about whether or not it's worthwhile for you to make a will for the time you'll be living in Louisiana:
https://www.nolo.com/legal-encyclope...louisiana.html
Cheers,
Bev

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Old 8th October 2018, 05:09 PM
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Thank you so mich, Bev

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Old 8th October 2018, 06:46 PM
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Quote:
Originally Posted by venus13 View Post
Sorry for a late reply. Thank you so much. I was wondering about a residency too but we will be in the US for 3-5 years. Unless we make a will in the US to cover our stay for 3-5 years, we revise the will again when/where we move next (perhaps back to Canada where we are from). Do you think this way would work better?

What about the heritage taxes and so on in the US? We live in Louisiana so itís a bit complicated with all kinds the US taxes have. Any recommendation?
If you mean Green Card by residency - processing times have doubled lately.
What is so difficult about writing a will, getting it notarized and recorded? Taxes are pretty straight forward. A local attorney will draw a will up for a nominal fee, you download LA specific information yourself or talk to your tax preparer.

I would be more concerned about who will take care of the children immediately and have the legal right to do so were something to happen to you.

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Old 9th October 2018, 01:57 AM
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Quote:
Originally Posted by venus13 View Post
Sorry for a late reply. Thank you so much. I was wondering about a residency too but we will be in the US for 3-5 years. Unless we make a will in the US to cover our stay for 3-5 years, we revise the will again when/where we move next (perhaps back to Canada where we are from). Do you think this way would work better?

We do care about our kids first thing. We don’t want to have the law conflicts where our assets are in those countries listed and where we are originally from and where we had marriage. Int’ laws with different nationalities for us sometimes give difficulties while living overseas. I know that US, Canadian, Thai laws are different when it comes to inheritance and wills as well as taxes. That’s why we want to know where it’s best to make a will eitherin Canada or in the US. We are not planning to apply for US green card. We are in the US for work purpose that the company assigned us here only for the next 3-5 years.

What about the heritage taxes and so on in the US? We live in Louisiana so it’s a bit complicated with all kinds the US taxes have. Any recommendation?
If you mean Green Card by residency - processing times have doubled lately.
What is so difficult about writing a will, getting it notarized and recorded? Taxes are pretty straight forward. A local attorney will draw a will up for a nominal fee, you download LA specific information yourself or talk to your tax preparer.

I would be more concerned about who will take care of the children immediately and have the legal right to do so were something to happen to you.
We are concerned about kids and if one dies, how another person would do with the will. I understand how the US visa works for us but if we make a will in the US where most assets stay in the US, how would that be if something happens for the next 3-5 years?

We are not planning to apply for a green card. We are here for work that the company assigned us for 3-5 years only and we don’t know where to move next either going back to Canada or going somewhere else. We just don’t want to live life in uncertainty. That’s why we want to make sure where to make a will and not get int’s law conflicts if sth were to happen during our stay in the US.

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Old 9th October 2018, 06:13 AM
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You really probably need to talk to an attorney about this. There are some peculiar state laws that may require (for example) that the guardian you appoint for your children be someone resident in the state, or something similar. (Normally, in that case, you would appoint someone who agrees to turn the children over to a family member or whoever you want from out of state.)

And, you definitely want to ask about the possibility of incorporating your Canadian will into whatever arrangements you make while living in the States. There are also possibilities involving trusts or other arrangements whereby your kids would be provided for until they could move back to Canada and/or until they reach adulthood or any other milestone you want to set for them.
Cheers,
Bev

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Old 9th October 2018, 03:49 PM
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I really do not understand the problem.

Divorce - all bets are off
Parent with L1 passes - family has x days to return Canada, executor will handle probate and estate or appoint a representative
Both parents pass - children have x days to leave the US, executor will handle probate and estate or court will appoint one

Generally when children are sole survivors PD brings in immediate family or registered appointed guardian, child protective services. Expat employers are generally notified immediately and HR takes over. That takes care of the first day or two. If your kids are your main concern - again - you need someone who is legally authorized to handle them and their affairs.

Not trying to be funny but our cats have a trust fund set up with an attorney authorized to act upon and a trigger person with access to an account to reimburse for time and effort and allow to have vet/rescue remove them from the home, keep them as they are used to and home them with a substantial financial padding until the end of their days.

Your problem - the kids cannot stay in the US.

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