When One Will Is Not Enough: Ensuring Testamentary Intent in Multiple Jurisdictions

By Diane K. Roskies

Diane K. Roskies is a principal attorney at Offit Kurman in New York.

As global mobility expands, more U.S. citizens and permanent residents are acquiring homes abroad—whether as vacation retreats, inherited family properties, or dual residences for work, particularly among international executives. Canada, in particular, has become an increasingly desirable destination for U.S. residents seeking cooler climates and access to world-class recreational properties. But owning property in a foreign country presents unique legal challenges, particularly regarding estate planning. A carefully structured approach using two wills—one for U.S. assets and another for the foreign property—can help ensure that your estate is administered smoothly and according to your wishes.

The Challenge of Foreign Inheritance Laws

Each country has its own legal framework governing inheritance. For example, Canada has different probate rules and tax implications than the United States. In Canada, inheritance laws vary by province. Though a U.S. will might govern worldwide assets, it may not be the most effective way to transfer foreign property.

Canada as an Example

Canada currently has laws restricting non-Canadians from purchasing certain residential properties in urban areas, though these restrictions may not apply to vacation homes, cabins, or cottages. Additionally, if a non-Canadian inherits residential property in Canada, they typically would not be required to sell it. The probate and tax implications of such an inheritance can be complex.

Challenges of Using a Single U.S. Will

If only a U.S. will is used to bequeath a foreign property, several complications may arise:

• Translation issues: If the Canadian home is located in Quebec, certain documents may need to be translated into French. However, some terms in French and English may not have direct equivalents, and certain legal concepts may not translate precisely. Additionally, the translation may need to be certified by a qualified translator whose credentials are recognized in Canada.

• Execution requirements: Different countries have different will execution standards. What is valid in the United States may not be legally recognized in Canada.

• Filing requirements: The original U.S. will may need to be filed in both the United States and Canada. Some courts accept exemplified, authenticated, or court-certified copies of the will with an apostille, but others may not. Certain foreign courts may even require a bonded attorney from the United States to personally hand deliver the original will to the foreign country for inspection and copying.

Risks of Local Intestacy

A U.S. will alone cannot ensure that your Canadian second home is distributed according to your wishes. If the will does not comply with Canadian laws, it may be subject to local intestacy rules, leading to unintended consequences. For instance, Quebec’s civil law system includes “forced heirship” rules, meaning a portion of the estate may be legally required to pass to certain heirs, regardless of the testator’s wishes.

Two Wills for U.S. Persons

A practical solution is to maintain two wills: one governing U.S. assets and another specifically for Canadian property. This may require two probate procedures—one in each jurisdiction— but is often preferable to undergoing original probate in the United States followed by ancillary probate in Canada. It is essential for your American estate attorney and Canadian attorney to coordinate when drafting two wills. The documents must not contradict or revoke each other. Having a Canadian executor named in a local will also can facilitate a smoother transfer of ownership.

Tax Considerations

Canada does not have an inheritance tax, but it does impose a capital gains tax upon death based on the appreciation of the decedent’s Canadian assets. U.S. estate tax also may apply to Canadian property depending on the total value of worldwide assets at the time of death. The U.S.-Canada Tax Treaty may provide a credit for Canadian taxes paid on the U.S. estate tax return.

Considerations for Other Foreign Properties

Although Canada serves as a strong example, similar estate planning issues arise in other countries. Many European nations, including France, Italy, and Spain, enforce forced heirship laws. Mexico, Israel, and Korea also have unique probate and tax systems that may not recognize American wills. The key takeaway is that local estate laws must be considered whenever a U.S. person owns foreign real estate.

Proposed Revocation Clause

To ensure clarity and prevent unintended revocation, each will should include a carefully drafted revocation clause that explicitly defines its scope and preserves the validity of the other.

Below is an example of how this might appear in a U.S. will:

I, ANTONIO GONZALEZ, being a citizen of the United States of America and a resident of the City, County, and State of New York, publish and declare this to be my United States Last Will and Testament, to control the disposition of the property hereinafter described and defined as my Estate, and I hereby revoke all wills and codicils at any time heretofore made by me with respect to such Estate. This United States Will shall not revoke or otherwise interfere with the disposition of any property situated in Canada. This United States Will can only be revoked by another will that is later in date than this United States Will. This United States Will may not be revoked unless the revocation clause of another will specifically refers to this United States Will by date of execution and explicitly revokes it.

A corresponding clause should appear in the Canadian will, specifying that it governs only Canadian property and does not revoke the U.S. will.

Key Issues to Address in Dual Wills

1. The U.S. will should specify that it governs worldwide property except for real estate in Canada (or another foreign country).

2. The foreign will should state that it governs only property in that specific country.

3. The U.S. will should designate the law of which state of the United States governs the U.S. will.

4. Both wills should explicitly list the types of assets they cover.

5. The governing law for each will should be clearly stated.

6. Spousal elective share and forced heirship rules in both countries should be considered.

7. The ability of the U.S. executor to pay estate expenses in the foreign country should be addressed.

8. Inheritance taxes in the foreign country may be collected from the beneficiaries rather than the estate. The U.S. will should clarify whether the executor can reimburse heirs for these taxes.

9. A properly tailored residuary clause should be used to prevent conflicts between the two wills.

10. The enforceability of powers of attorney or health care directives across jurisdictions should be reviewed to ensure they are valid and recognized in both countries.

Conclusion

The general rule is that an individual should have only one will at a time, but multiple wills—one per jurisdiction—are often used in international estate planning. Multiple wills can help streamline the estate administration process, reducing delays and ensuring that assets in different jurisdictions are handled efficiently. Additionally, this approach can offer greater privacy regarding worldwide property distribution. But without a well-structured estate plan—including a separate will specifically tailored to the legal requirements of each relevant jurisdiction—your family may encounter unnecessary legal complications, prolonged administrative delays, and unintended consequences that could have been avoided with proper planning.