US Legal Opinions

US Expert Opinions – Monte Silver, US lawyer

When a person in the US dies (“the deceased”), and a person outside the US inherits part of the estate of the deceased, how does that person get what she/he deserves?

The distribution of the assets of a deceased in the USA is carried out in a process called Probate.  The process is managed by the probate court by a probate judge. Basically, The judge:

  • determines whether the will (if there is one) is valid,
  • appoints a person who manages the process (the administrator or executor) whose job is to (i) gather the assets of the deceased, (ii) inform the potential beneficiaries, as well as the creditors of the deceased of the process, (v) pay the debts of the deceased from the remaining assets, and (iv) distribute the remaining assets according to the provisions of the will (or according to the law when there is no will).

How does a probate process begin?

In the US, the probate process begins when a person living in the US submits a petition to the court which seeks to probate the estate.  The will (if any) is attached.   It is important that the will, and any other documents submitted to court, are public documents for all to see.

The petition seeks to confirm the validity of the will and divide the assets according to what is written in the will (if any). 

Who may file the petition?

If the deceased left a will, the will usually list the name of the administrator or executor who may the file the petition and administrator the estate.  That person must be a US resident and is almost always a family member or a lawyer.  Also, the will usually specifies who will be the substitute administrator in the event that the first administrator cannot or does not want to be appointed.  If the person dies without a will, then an interested party (creditor or heir) may submit the petition.

Where can the petition be filed?

The petition can only be filed in the location where the deceased resided at the time of death.  Of course, in many cases the deceased has assets outside the US.   What happens then?  In such cases, the question arises as to whether deceased left a second will which governed how these assets are to be handled. 

Areas of dispute

  1. Is the will valid?
    Many times,  foreign beneficiaries has different interests than those living in the US near the deceased. And it is important to protect these interests.  For example, what happens where shortly before or after death,  a local family member or caregiver produces a new and suspicious will that significantly alters the way the assets are to be divided?  Was the will the result of unlawful influence? And if so, what can be done?

    How do you invalidate a suspicious will?
    There are several ways to attack the validity of a will.  First, each state has its own laws regarding the formal conditions that a will must meet in order to be valid in that state. For example: (i) Were the witnesses to the deceased’s signature on the will neutral? If not, the will can be invalidated. (ii) Was the deceased mentally competent when he/she signed the will? (iii) Was pressure exerted on the elderly person to sign the will?

  1. Does the administer/executive owe you a report?
    One of the main weaknesses of a beneficiary living abroad is access to information. What assets did the deceased leave behind? What were their value? Who are the creditors? Did the deceased make strange transfers of assets before death.  You must know this.

Indeed, the administrator/executor must give a report to the court, to the heirs and to the creditors. It is an essential part of the executor’s role. If the executor and heirs who live in the US are close, everything will be done quietly, and the executor’s report will be given to all parties at the end, as a finished product.   Clearly this does not serve the interests of the foreigner.  In such a situation, standing quietly on the sidelines can harm your rights. 

Bottom line, if you have rights in the assets of someone who died in the US, you need to make sure that your interests are protected. Our probate team specializes in one thing and only one thing: representing foreign heirs in protecting their rights in US-based probate proceedings. We understand your concerns and are here to help you protect your interests.

To schedule a free consultation, contact us.

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