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Will, estate planning and non-USA resident beneficiary for a Permanent resident

San Jose, CA |

Me and my spouse are permanent residents in the USA but are citizens of India. If and how can we form a Will and do estate planning to ensure that our family in India becomes the beneficiary in case anything happens to both me and my spouse?

Attorney Answers 4


  1. Best answer

    Should you use a Trust as part of your estate plan for your assets in the USA, you should definitely name a successor trustee who is a US citizen and residing in the USA, because if you name a non-US citizen or one living in a foreign country, your Trust will likely be deemed a "Foreign Trust" by the IRS and be subject to additional reporting requirements and taxes that most trusts are not. I have written a newsletter on this subject, so if you would like me to forward that to you, please e-mail me at jpenhaligen@jpenhaligenlaw.com.


  2. You can go ahead and do estate planning in the U.S. and name your family members in India as beneficiaries. You may wish to name someone in the U.S. as an executor and/or trustee, so that your family wouldn't be required to travel here to administer your estate. If you own property in India also, you would probably need to do a Will in India also so that you can leave that particular piece of property to someone. I recommend you contact an estate planning attorney in your area.


  3. Estate planning should be done in the country where you 1) reside, and 2) own property. Inasmuch as you are now residents and presumably are acquiring assets here, you definitely want to prepare an estate plan covering you here. The suggestion of a local successor trustee is a good one since the estate will be administered here. If you own real property in India, additional planning will be required in relation to it. As part of that planning, you will want to have prepared appropriate powers of attorney for financial matters, healthcare directives, living will, HIPAA directive, etc. to assure your preferences are assured in the event of you or your spouse becoming incapacitated. Hope this helps.


  4. Assuming that the property interest you are describing are located in the United States and if something would happen to both of you, you would want your designated properties to go to certain family members then at the minimum you would draft a will that indicated that if both of you perish simultaneously or define short time period that your ultimate beneficiary shall be the named individuals you set forth in the will. The same goal can be accomplished by and through a Living Trust. If you have very significant wealth and concerned about asset preservation then it’s far more complex. An estate plan would have to be developed.

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