The US diaspora reaches every corner of the World. There are sizeable US contingents in Mexico, the Philippines, Israel and Liberia, but this is just a start. Millions of US citizens are finding new lives in Europe, Asia and Africa there are millions of US citizens with statistical estimates of anywhere from three to six million Americans living abroad. The following map is provided by www.americansabroad.org
A good proportion of these US citizens still hold assets back in their home country, and where you hold assets, you need a Will. So what are the steps involved in preparing your US Last Will and Testament, when you are living in a foreign country? What options are available to you? and how important is it to have a Will in place anyway?
Which approaches are available for preparing a US Last Will and Testament while living abroad?
There are fundamentally four methods of preparing a US Last Will and Testament while living overseas.
Write one yourself on a piece of paper. Clearly state that it is your Last Will and Testament and sign it at the end. This is known as a holographic Will. The problem is, that this type of Will is not recognized by most US states and some only accept them if they are written in the State itself. In fact, this approach will probably only work if you are in Connecticut, Hawaii, Iowa, Oregon, South Carolina, Washington, or Wisconsin. Even though they are legally accepted in these states, it is still an ill-advised approach to preparing a US Last Will and Testament as most requirements of a well drafted Will are likely to be omitted.
Use a blank form kit that is purchased from a bookstore or Amazon. Although this can work, you have to be very careful with this approach. Firstly, State laws vary, so in order to be generic enough to cover the laws of every US State, they rarely perform much better than a blank piece of paper. In fact, many of them really are blank pieces of paper packaged up into a “kit”. This is an example of one that we purchased.
Furthermore, laws change, so you have no idea whether the kit you have purchased is up-to-date. Whatever you do, you must avoid purchasing a UK kit, or Australian kit, to cover US assets. These will not allow you to create a legal US Last Will and Testament.
Write your US Last Will and Testament with a lawyer. This approach is far more likely to give you a quality Will, but it’s the most logistically difficult approach to take. To do this, you will have to find a lawyer licensed to practice law in the jurisdiction of your assets, meet with this lawyer, and then sign the documents in the presence of two witnesses. This approach only really works if you are returning back to your State of origin on a regular basis. Bear in mind also, that this can be an expensive approach; a standard US Last Will and Testament costs around $500, but you will be needing a specially drafted document that deals exclusively with your US assets and works in conjunction with your acquired assets in your new country of residence. Some lawyers don’t even have the expertise to draft this particular type of Will.
Use interactive software to prepare your US Last Will and Testament. There is now a more convenient approach that brings the lawyer’s tools to your desktop and gives you direct control over preparing your own Will. This is the kind of service provided by ExpatLegalWills.com. The advantages over the blank form kit are significant; the service is customized for each State, always kept up to date, and most importantly, it checks for errors before generating your personalized US Last Will and Testament. The final document ends up being word-for-word the same as a Will prepared by a lawyer, because we use the same tried and tested paragraphs (legal precedents). The key bonuses you get with a service like this when compared to visiting a lawyer are that you can create your Will from the comfort of your own home, anywhere in the World, and update the document at any time by simply logging into your account.
It is however important to note, that if you have settled in a new country and created a Will to cover your new assets, do not use a standard US Last Will and Testament service. Each Will usually starts with a “revocation clause” which cancels all previous Wills, including the Will you have written for your new home. The Wills at ExpatWills.com are designed to work together with any other Will you have and deal exclusively with your US assets.
So here are some quick pointers to preparing your US Last Will and Testament, from anywhere in the World. You could be sitting at an internet cafe in Thailand, a hotel in Sydney, or a beach in Cancun.
1. The key appointments in your US Last Will and Testament
In your US Last Will and Testament you are going to name an Executor and potentially guardians for children. You will also name alternates in case your first choice appointments are unwilling or unable to serve. Before finalizing your selection, it is a good idea to gain approval from your appointee before naming them in your Will. These can be onerous tasks and if your chosen Executor decides that they are not up for it, it is better to know this before you have passed away.
2. Consider the distribution of your assets
For many people this is the main purpose of writing their Will; decided who will receive which asset. It can be as simple as leaving your entire US estate to one person, or dividing it between a few friends or family members. But it is also an opportunity to leave specific items to named beneficiaries, and even thinking about charitable donations. Planned legacy giving (leaving something in your Will to a charity) it one of the most effective ways to help a charity while having no impact on your own lifestyle.
3. Think about alternate plans
Oftentimes describing the distribution plan for your estate is the simple part of the process. It is the alternate “what if” plan that leads to the most head scratching. What would happen if you and your main beneficiary were both involved in a common accident? or one of your beneficiaries were to pre-decease you? The service at ExpatLegalWills.com even allows you to create a second level alternate plan, but it can be complicated to work through these scenarios.
4. Step through the service
The service at ExpatLegalWills.com is made up of about nine sections depending on your situation. You firstly identity yourself and then describe your family situation including your marital status and noting whether you have children and whether they are still minors. You then name your Executor(s) and guardians for minor children if you have any. You step through the section on distributing your possessions including charitable bequests and a residual beneficiary. The service then prompts you to create a trust for any minor beneficiaries. Finally there is a section on forgiving outstanding debts. Once you have stepped through the service, you can view and download your US Last Will and Testament.
5. Print and sign your Will
To make this document a legal US Last Will and Testament, it must be printed and signed in the presence of two witnesses. Online Wills, digital Wills, scanned documents, video and verbal Wills are not legally acceptable. It must be printed on a piece of paper, and usually our Wills are about 6 pages. You must then sign the document in the presence of two witnesses who are not beneficiaries in the Will. But these witnesses do not have to be lawyers or notaries; simply two friends, neighbors or co-workers are perfectly acceptable, and there are no legal residency or citizenship requirements for witnesses.
6 Store your document in a safe place
There is no way to register your US Last Will and Testament all the time you are alive. Once you pass away, your Will is filed with the court system through the probate process, but while you are alive it is a personal document that can be updated at any time. The decision on where to store the Will is a personal one, but the most important consideration is that it must be kept somewhere known and accessible to your Executor. Some people even give a copy of their Will to their Executor in a sealed envelope, and this may be a particularly good strategy if your Executor is back in the US. This way they will be able to file the Will with the probate courts at the appropriate time. The courts will then grant them the authority to act as the estate administrator and gather up your US assets.
Creating your US Last Will and Testament while you are living overseas can be a tricky process if you choose to handwrite the document, use a blank form Will kit, or secure the services of an estate planning attorney. But using the interactive Will service at ExpatLegalWills.com you have an opportunity to use professional grade estate planning software from the comfort of your new home.
It really is as simple as stepping through the service, printing the document and then signing it in the presence of two local witnesses. The whole process can take as little as 20 minutes.
President and founder of the LegalWills group including USLegalWills.com, LegalWills.ca, LegalWills.co.uk and ExpatLegalWills.com.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
Latest posts by Tim Hewson (see all)