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How to Deal with Out-of-State Assets in an Estate Plan

It is not uncommon in our region for people to own real property outside of New York State. Increasingly, people own other home or investment properties out of state and even out of the country. A will generally disposes of all of an individual’s assets. The rules are different however if the asset is real property. There are three rules to keep in mind and carefully consider when dealing with assets outside of New York as part of your estate planning process.

Consider the following rules when drafting or revising your will:

  1.   If the out of state asset is real property it is vital to develop your estate plan in conjunction with the law in that locality. Real estate assets are governed by the laws of the country or state in which they are situated. This means that the law of the other locality will determine if the New York will is recognized as valid there with respect to the real property.
  2.   It may be possible to prepare the New York State will, so it is recognized as valid in other jurisdictions. Generally, movable assets, like furniture, art, automobiles, are disposed of according to the state or country in which the will maker was domiciled at death. Domicile is the place where the will maker intended to live and be there long-term home – whether or not they were living there at the time of their death. With respect to international real property assets, some countries are signatories to the International Wills Convention and permit a New York will to dispose of real property held outside of New York in a foreign country. This designation permits the New York will to be recognized as validly executed in that jurisdiction.
  3.   Multiple wills may be necessary but be very careful about revocation!  Moveable assets, even if they are held out of state can be disposed of under a New York will. For real property or significant assets, it may be worth having a will in place in each country and state. It is important to have the will made in accordance with the laws of the country or state where the real estate is held. An estates planning lawyer in those areas are most familiar with the succession laws and requirements, including the payment of death taxes. If and only after consulting with an attorney, a will maker makes the decision to prepare wills in multiple jurisdictions it is critical to ensure that the wills do not revoke each other and at minimum the will is limited to just the assets in that jurisdiction. Tell each attorney about the existence of the other wills.

The key takeaway from this post is that when dealing with out-of-state assets it is important to consider the succession laws of the other jurisdictions and how those laws impact your New York will.

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