Legal Translation of U.S. Wills into Foreign Languages
Professional legal translation services come in handy in the legal practice of wills, trusts, and estate planning. With many Americans either retiring abroad or owning assets (real estate, businesses, investments, etc.), an increasingly common issue is what happens when the individual dies. If you have drafted a will in accordance with US law, will it be recognized in a foreign country?
The answer, like many legal questions, is ‘it depends’.
As a general rule, a valid will drafted and signed in compliance with the laws of your residence state will not necessarily be recognized as valid by a foreign country. For example, nuncupative and/or holographic wills shall not be recognized. A nuncupative will is one where the last will and testament is made verbally before at least two witnesses. A holographic will is one that is written by the testator and signed and dated by the testator with no witnesses. Just as many US states will not recognize these types of wills, in all likelihood neither will a foreign country.
However, the most critical issue with a US will’s validity in a foreign jurisdiction is whether or not the valid US will violates any laws of the foreign country. For example, in the US you are typically free to leave your property to the person(s) of your choosing. The exception to this is when you are married, where most states require that at least a portion of the estate go to the surviving spouse regardless of the testator’s wishes.
In many foreign countries, including Germany, Spain, Italy and France, the right to leave your property to whomever you want does not exist. Instead, these countries have a rule of forced heirship, meaning that all or part of a person’s property must legally be given to a blood relative instead of, or in addition to, a spouse. Thus, a provision in a valid US will to deed your property to your best friend or even your wife goes against the law of the foreign jurisdiction and will thus not be valid or enforceable.
Another common issue with enforcing US wills in a foreign country is the US practice of establishing testamentary trusts for named beneficiaries. Outside of the US trust are not common and in fact are seen as tax evasion mechanisms. To remedy this, many foreign countries place a substantial tax levy on all foreign assets that a trust beneficiary receives.
Last but not least is the issue of language. If the country where your assets are located uses a language other than English, your English language will shall not be valid. It is best that you have your US will translated into the language of the country where the assets are located. However, it is important to remember that a foreign language translation of your valid US may not guarantee that it will be seen as valid under the foreign country’s laws.