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This edition of Multistate and Multinational Estate Planning covers the legislative, regulatory and judicial developments that are of most importance to estate planners and their clients.

Wills, Trusts and Estate Planning Fundamentals

Volume 1 1. Objective and Organization 2. Worldwide Wealth Transfer and Its Regulation 3.

Professional Responsibility 7. Establishing Domicile 9. Marital Rights, Protections, and Agreements Intestate Succession Rights of Children Other Restrictions on and Substitutes for Testamentary Disposition The Will in Multistate Estate Planning The Role of the Will in the Multinational Estate The Administration of Multistate and Multinational Estates The Trust in Multistate Estate Planning So for the family in question, it is important the executor appointed in any will be a US resident, not a relative in the UK.

For different reasons, all successor trustees of a living trust should ideally be US residents. For a family with a very close relationship to overseas relatives like our hypothetical family , this could create issues. Our hypothetical family may have no blood relatives or even close friends in the US, and the children may even have been raised for some time by their grandparents in Great Britain. Many reasonable people would believe it to be in the best interests of such children to be raised by their relatives, as opposed to non-relatives in Illinois or even in the foster care system.

There could be much debate about what is in the best interests of the child, which is what courts ultimately strive to achieve. The parents should also clearly state their intentions about who they want raising their children, and where, in their wills possibly in both countries. Maintaining dual citizenship for the children may be wise.

Ultimately, it may require the UK family going to a court in the UK to adopt the children or get some form of guardianship, and then trying to get the children travel clearance to the UK through diplomatic channels. However, there is no guarantee this process will work, so it would be wise for the family to name local guardians to serve in the event that their preferred guardians cannot take custody of the children. It is unfortunate that in of all places, we have to worry about trusting the confidentiality of our most private moments in a hospital.

Courtesy of Mediaphoto. Inventorying your Digital Assets Our society has become so accustomed to conducting business online that many of us have a staggering number of online accounts. Hotel rewards, frequent flyer, etc. File storage Social media Web hosting E-mail Blogs Making an inventory will better help you prepare you to meet with an estate planning attorney, to discuss strategies to deal with your digital assets. Managing Passwords Good password management can be the difference between having your death wishes enacted, or frustrated by online security features.

Multistate and Multinational Estate Planning Volume 2

If, for example, I give written instructions for my executor to post a memorial article on my blog after my death, it would be important for my executor to have access to my password. On the other hand, I may not wish to share my password while I am living. Even if I trusted someone with my password now, I would not easily be able to update this person each time I updated my password which is a good idea for security purposes.

I have at least 20 separate passwords for various online accounts, and the number only seems to grow every year. Some online services, like onepassword, offer to store all your passwords in a digital vault, accessible only with one master password.

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Some people prefer more old school methods, like writing down all passwords on a sheet of paper and storing that in a bank safe deposit box, or a house safe, and giving the executor the power to access the documents after their death. Of course this method is not foolproof if the document is not updated or its location is forgotten. However, an attorney can help you weigh the pros and cons of various password management systems for your estate planning purposes.


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An overview of these policies can be found here and here. Your loved ones have some options for how to handle your social media and other online accounts after your death. If you would prefer your Facebook page show a memorial video after your death , leave instructions to your executor explicitly stating that.


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  6. If you prefer that your blog, online pictures, and other assets be taken down after your death , make those wishes known. My personal wish is that my blog and other resources I put online be available for people to view after my death. That means I need to leave instructions to my executor and loved ones to preserve this site, and not let the account expire. This may take some active management, so I need to leave specific instructions. Remember that just because you post something online, you do not necessarily lose all rights over it.

    For example, the information in this blog is copyrighted, and I would expect my executor to take reasonable steps to protect it if someone tried to improperly copy the material. By alerting him or her to a full profile of my digital assets, I better ensure that my online accounts are taken care of the way I would have wanted. Whether you have a blog, Facebook page, email account, or other account, it is better to have a plan in place than to leave your family struggling to take care of your online presence after your death.

    Courtesy of Ralf Roletschek If you have a family member who struggles with addiction, gambling, a controlling spouse, a party lifestyle, or bad financial planning, estate planning can be a dilemma. On one hand, you may wish to provide the family member a share of your estate to show that he or she is loved just the same as other members of the family.

    On the other hand, you worry that any inheritance will end up in the hands of creditors, a manipulative partner, at the casino, or fueling a drug addiction.

    This post will discuss how spendthrift trusts are used to responsibly provide for family members who may not be able to manage an outright inheritance:. In many wills or living trusts, all property destined for adult family members is given outright, with no strings attached.

    It is often best for these adult family members to receive the full share of the estate quickly, and with as little hassle as possible. In fact, avoiding legaland administrative hurdles to speedy distribution of property is one of the main reasons people hire estate planning attorneys. However, there are instances where you may need to protect the ones you love from receiving too much money at once. If you have a son who is in severe financial trouble, an outright inheritance may simply be consumed in bankruptcy proceedings and end up in the hands of creditors.

    Perhaps you have a daughter recovering from a drug problem; a sudden influx of a hundred thousand dollars may tempt her to revert to a dangerous habit. The best way to take care of children in situations like these is often to ensure that they are provided a stream of financial support when needed, but not given control over the management of their inheritance. The mechanism for doing this is a spendthrift trust. In your estate plan, put the stock portfolio into a spendthrift trust. After you die, the trustee you named for the spendthrift trust will control the stock portfolio for the benefit of your son.

    You might name a family member, a financial institution or both , or any other trustworthy person or entity to serve as trustee. Importantly, creditors cannot reach the money while it is still in the spendthrift trust because your son does not have the power to withdraw funds from the trust himself.

    Volume 32 Issue 3 | The American Journal of Comparative Law | Oxford Academic

    The trustee is in control. In this example, you would likely give specific instructions to your trustee about when to distribute money to your son and for what reasons. For example, you could leave instructions for the trustee that he or she is to use the funds to buy food and clothing for your son only. You may also give the trustee discretion not to make distributions to your son, which may be particularly desirable at times when creditors are likely to seize any property that is distributed. Also, spendthrift trusts add layers of complication to an estate plan. Consider carefully the consequences of tying up an inheritance for years after your death.

    Talk to an estate planning attorney if you think a spendthrift trust might be right for you. This week my family and I moved back to my hometown of Naperville, Illinois, after seven years in the Air Force. During that time, I frequently drafted estate plans for military members with property in multiple states. In , we purchased a home in Guam, while maintaining Illinois residency, an arrangement that is common in the military.

    We loved owning our little slice of paradise in the tropics. But what would have happened if we had died with some property in Illinois and a house in Guam? In general, for personal property bank accounts, investments, personal belongings, etc , a will is probated in the state of residence. In our case, if we died with an Illinois will, an Illinois court would oversee the disposition of our personal property.

    However, when it comes to real property, generally the jurisdiction where the real property is located handles the probate process. The real estate would be probated in Guam, and the rest of the estate in Illinois. This could greatly increase the legal fees to close our estate. Additionally, it might take a year or more to complete the process. However, like many couples, my wife and I held title to our Guam house as joint tenants with right of survivorship. If just one of us died, the other would automatically take ownership of the whole property.

    Of course, imposed conditions have to be lawful and not contrary to public policy, but an arbitration clause, generally speaking, is not against public policy. In reference to changes in circumstances the court will always, upon petition, have the power to examine the arbitrability of the particular issue as part of its power to revise when there are changes in circumstances.

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    Another limitation, imperative in a comparative approach, is the forced heirship rules as restrictions of the disposition. Adams, U. For example, Article 6 of the Hague Convention on Trusts recognizes that the trust shall be governed by the law chosen by the settlor. The Benefit Theory. This is the third and final approach to the enforcement of mandatory arbitration clauses in a trust.

    It could be characterized as a complement of the intention theory. It states that parties who accept property under a will or a trust impliedly agree to be bound by all of its terms, including an arbitration clause. Satterfield, S. Louis Division v. Hammerstein, S.