Immigration and Will Drafting

Immigration is a very broad topic that affects all aspects of one’s life. One area that many don’t think about is their estate planning. While it may be common knowledge that when a non-resident alien or (even a resident alien intending on eventually travelling back to their home country) prepares a will in the U.S. they are doing so to make sure their affairs are in order in the U.S. while making sure they have documentation back in their home country (or in some instances cultural norm takes over by default).

An issue that may come up more often than people may think – especially in cities close to the Canadian Border or with a lot of foreign students/workers – is when a U.S. resident/citizen names a family member as executor of their will who is not a U.S. resident/citizen. This happens many times when clients use online legal services to prepare their wills and other estate planning documents, without the help of a licensed attorney.

Under New York Surrogates Court Procedure Article 7, § 707.  Eligibility to receive letters:

“Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

  1. Persons ineligible … a  non-domiciliary  alien except one who is a foreign guardian as provided in subdivision four  of  section  one  thousand  seven  hundred sixteen  of  this  chapter,  or  one  who  shall  serve with one or more  co-fiduciaries, at least one of whom is  resident  in  this  state.  Any  appointment  of a non-domiciliary alien fiduciary or a New York resident  fiduciary hereunder shall be made by the court in its discretion

What this section states is that an executor of a New York will must be a resident or citizen of the US. One exception to this rule is when the will or court appoints at least one  co-executor (co-fiduciary) who is a New York Resident (and a permanent resident/US citizen).

In cases where the named executor is a non-resident alien and there is no co-fiduciary listed, the court has the authority to appoint a co-fiduciary or authorize the appointment of the non-resident alien to be the executor.

This is just one example of how the immigration status of a person can affect various aspects of his/her life. It is important to consult an attorney when dealing with legal matters that deal with your person or property to make sure all applicable issues can be addressed.