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Congratulations! You have moved to to the United States from your Home Country. You have a wonderful job, a great spouse, beautiful children, and a home in a fabulous neighborhood in Fort Bend County that has top-rated schools. You now want to do an estate plan in the United States. However, there are many considerations you need to think about. This article goes over just a few of them.

1) US WILL vs. HOME COUNTRY WILL?

Think carefully about where your estate is located. If you have assets here in the United States, you need an estate plan (will, trust, etc.) for the United States. If you have assets in your Home Country, you probably ALSO need an estate plan for those assets as well. Whether or not the Home Country will recognize an American will and probate depends on whether that country has a treaty with the United States and similar legal systems. You should consult an attorney in the Home Country to confirm.

2) RESIDENCY STATUS OF BENEFICIARIES

Is your spouse a resident of the United States? What about your Children? Do you intend for them to live in the United States after you pass? Will they live in the Home Country? Beneficiaries that do not live in the United States can inherit, but they will have their taxes withheld from any distribution. As always, you should speak to a CPA about this if you have questions about withholdings or using qualified domestic trusts to plan around this issue.

3) RESIDENCY STATUS OF TRUSTEE

Your trustee must be a resident of the United States and they must live a majority of the days of the year in the United States. I strongly recommend naming a trustee who is a citizen or a green card holder/permanent resident. If you choose a trustee who is a resident alien on a visa, I strongly encourage that you have a discussion with that person if they will ever move away from the United States. The reason why is because if a person is a non-citizen and a non-resident of the United States, then the trust will be considered a foreign trust and the tax laws are very punitive for foreign trusts. For my clients who simply do not have any person who can serve as a US based trustee, I recommend naming a US based corporate trustee. If this is a concern at all, please discuss this with your attorney and a CPA.

4) RESIDENCY STATUS OF OTHER FIDUCIARIES

Your Executor, Durable Power of Attorney, and Medical Power of Attorney do not need to meet a residence or citizenship test. However, you want someone who can come QUICKLY to assist in the event of an emergency. During the pandemic of 2020, travel was severely restricted in many countries. That meant many people in the Home Country would not be able to get a visa to travel to the United States. Additionally, this person might need to make many trips to the United States to wrap up an estate as many tasks, such as cleaning out belongings, selling real estate, or establishing a bank account, must be done in person or in front of US authorities, with proper identification documents.

5) GUARDIAN OR CONSERVATOR OF CHILDREN IN THE USA

Your child's Guardian or Conservator do not need to meet a residence or citizenship test. However, they will need to reside in Texas if you want your children to have a Texas Guardianship. They will also likely need to pass an FBI background check, and if they are the guardian of the estate of your children, they will need to have a high enough credit score to qualify for a bond. I recommend only naming people you know who can pass a background check and people who you know have excellent credit. This can be very difficult for someone who is a recent immigrant to the United States to do as they do not have much of a credit history built. In addition, the documents we draft here in Texas are specific to Texas so we recommend Texas based persons since they meet the state requirements. If the children move to a different state in the United States, the courts will generally accept them, however, it is best to have the local documents.

6) GUARDIAN OR CONSERVATOR OF CHILDREN IN THE HOME COUNTRY

Your Home Country will likely reject the Texas guardianship documents. You will need to consult with an attorney in the Home Country to see what documents are needed for the appointed person to take guardianship of the children in the home country.

7) SHORT-TERM ADULT CAREGIVER

In addition, you will need to come up with a short term plan. For Children staying in the USA, there needs to be a plan to take care of the children while their Guardianship court process is pending. For the Children who will move back to the Home Country, there needs to be someone who can care for the children immediately while the visas and immigration to the Home Country can be arranged. I recommend authorizing an adult caregiver who can serve as that person who can temporarily take care of the children until the long-term plan is in effect.

8) USA AND HOME COUNTRY RELATIONS

Lastly, please consider the geopolitical relationship that the United States has with your Home Country. For example, if your Home Country goes through a regime change or engages in an unpopular war, the United States might impose sanctions on the home country. That means it might become impossible to move money from the United States to the Home Country through legal channels. It might be impossible for your appointees from the Home Country to fly directly to the United States or even obtain a visa. You need to be prepared to change your plan based on what is happening in the United States AND based on what's happening in the Home Country.

This is a SHORT list of considerations that immigrant families must consider when drafting an estate plan. If you're interested in creating your estate plan, you can call Chiang Law Firm at 713-568-9206 and set up a consultation today!

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