Garton & Harris

Wills: When an adult child and executor lives abroad

Having a comprehensive estate plan is a wise move for every individual, especially when children are involved. British Columbia residents, however, who have adult children living stateside should have another look at their wills to ensure all legal aspects are met and that there won't be issues when the time comes for those wills to come into play, especially when that adult child is not only a beneficiary, but also an executor. Getting over some of the hurdles may be time-consuming and expensive.

If one of the executors of a Canadian will lives in the United States, he or she will likely need to get a foreign executor's bond before the will can be probated. That bond should be equal to or up to two times the value of the assets of the estate. Failing that, the person can ask the court for an order to forgo the requirement for bonding which can take a lot of time and increased legal fees. It is also not a sure thing the court will grant that request. 

There may also be other hurdles to overcome. They can include dealing with the Canada Revenue Agency (CRA), central management and control of a trust, and filing a Report of Foreign Bank and Financial Accounts (FBAR) with the Financial Crimes Enforcement Network through the U.S. Department of the Treasury if the estate accounts are more than US$10,000. The U.S. resident would also need to protect him or herself from IRS estate tax.   

A British Columbia lawyer may be able to help a client in such a circumstance. Those people with adult children living in the United States must have their wills revised to make sure when it comes time to settle the estate that there are no major issues. Doing so could save time, money and added grief to already grieving family members. 

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