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

In short, domicile is the combination of physical presence and at least an intent to not leave.
However, domicile is already a problematic definition for a transnational. Many people live in various
jurisdictions , while maintaining an intent to leave. Additionally, other jurisdictions within the United
States, who have a history of dealing with transnational estates, in some cases allow for application of
laws that are not based on the domicile of the testator.
“In times like ours of peripatetic families and multi‐national situses for family property, original
protective decisions should be left in doubtful cases to the domicile of the living rather than that of the
deceased (cf. Matter of Goldstein, 34 A.D.2d 764, 310 N.Y.S.2d 602).” In re Brunner's Estate, 339
N.Y.S.2d 506, 510 (N.Y. Sur., 1973) (affm’ed Matter of Brunner's Estate, 380 N.Y.S.2d 744 (N.Y.A.D. 2
Dept., 1976)).
Even non‐domiciliaries can have domestic tax consequences to their estates. Generally, the tangible
personal property or real property of a nonresident that is actually located in the United States
is subject to the U.S. federal estate tax. Treas. Reg. § 20.2104‐1(a)(2).
“nationality”
Although domicile is a common test in American jurisdictions, estate planners assisting transnationals
cannot take for granted that other jurisdictions use this test. Most common law countries use the
nationality test. One such example is Germany, who under Article 25 of the Introductory Act to the Civil
Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), generally applies the probate and estate law of
nationality.
“habitual residence”
An evolving jurisdictional test, largely arising from international agreements, such as the Hague
Convention Concerning the International Administration of the Estates of Deceased Persons and
European Union Regulation 650/2012, set to take effect August 17, 2015, is habitual residence. This
definition looks at a variety of factors, including those making up our familiar domicile test, while also
taking nationality and location of assets into account.
“situs”
Situs is yet another jurisdictional test. Here’s a reminder of situs from Black’s Law Dictionary: Situation;
location… Site; position; the place where a thing is considered, for example with reference to
jurisdiction over it, or the right or power to tax it. It imports fixedness of location.
The effect of these differing jurisdictional tests, is that even if a client’s estate would fall under
Minnesota law under our test, it may also fall under the other law according to their tests. The result of
this reality is that a possibility exists that an order applying law that is very different to our own could be
made regarding our client’s estate.
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