Probate & Trust Law Section Conference Manual ... - Minnesota CLE

13 DANGEROUS ASSUMPTIONS
1. I need only be concerned with non‐citizen spouses.
There are far more individuals with international implications to their estates.
As estate planners, we are trained, either in law school or in practice, to become versed in the
intricacies of state and federal transfer tax law and state probate code. We learn that our Federal Tax
Code limits the use of the federal marital deduction to citizens and that QDOTs are a tool to limit the tax
consequences for non‐citizen surviving spouses. We learn that due diligence requires us to confirm the
citizenship of our clients. However, there are many more issues facing the estates of those with noncitizen
spouses and there are far more individuals who have very real international implications to their
estates. As we’ll explore, the following people have international implications to their estates.
1. Individuals with foreign citizenship.
2. Individuals with US citizenship domiciled abroad.
3. Individuals who may inherit abroad.
4. Individuals married to any of the above.
5. Individuals who have descendants having any of the above.
For purposes of this class, I refer to these individuals as “transnationals”. Few of us have been trained in
the role of treaties in our domestic law or international law generally. However, when transnationals
come into your office and you agree to represent them, you are called to practice international law. The
purpose of this class is to introduce concepts of foreign estate law and international law and to highlight
common assumptions domestic estate planners can have, which could have dangerous implications for
the transnational client.
2. You must only be concerned with the law of testator’s domicile.
You must look further.
Minnesota estate planners are used to looking at the domicile of the testator or decedent. Under
Minnesota Statue 524.1‐301, Minnesota probate law applies, generally, to the “affairs and estate of
decedents, missing persons, and persons to be protected, [who are] domiciled in this state”. However,
there are other types of jurisdictional definitions that can play a role for transnationals.
“domicile”
Here’s a reminder of domicile from Black’s Law Dictionary: A person’s legal home. That place where a
man has his true, fixed, and permanent home and principal establishment, and to which whenever he is
absent he has the intention of returning… Generally, physical presence within a state and the intention
to make it one’s home are the requisites of establishing a “domicile” therein.
For federal estate tax purposes, “[a] person acquires a domicile in a place by living there, for even a brief
period of time, with no definite present intention of later removing therefrom. Residence without the
requisite intention to remain indefinitely will not suffice to constitute domicile, nor will intention to
change domicile effect such a change unless accompanied by actual removal.” Treas. Reg. § 20.0‐1(b).
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