[WSBAPT] UK Citizens w/ US Real Estate

[Roger Hawkes]

Agreed; but how come you guys are all working on a Holiday!!  You are old enough to know better!!

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: John J. Sullivan [mailto:sullaw at comcast.net]
Sent: Tuesday, November 11, 2014 10:59 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] UK Citizens w/ US Real Estate

A very thorough and wise contribution. Thanks Sam.

John Sullivan

Sent from my iPhone

On Nov 11, 2014, at 10:43 PM, Sam Furgason <sam at furgasons.com<mailto:sam at furgasons.com>> wrote:
Felicia,
First, these people are asking you because you are a lawyer, not just a friend. Their questions are about legal matters. If you undertake to give them advice, whether directly or through forwarded comments by others, you have become their attorney on this matter. I’m sure they may treat this as a simple question, but really, casual advice yields casual results. Good advice would be to tell them that this is a matter of some complexity, and should merit their getting serious advice. I’d hazard a guess that they would appreciate and respect such a response.

No one who has answered has any real idea where this real property is located, how large or small your friends’ estate is, what the real property is worth, and probably little idea about UK law. And you’re willing to pass their lawyer to lawyer suggestions on to your friends for them to make life decisions on? I wouldn’t.

For example, Washington estate tax law looks at the entire estate of a decedent when determining whether an estate tax is owed. If the entire estate exceeds the taxable exemption, then an estate tax is imposed, the amount of which is in proportion to the portion of their estate which is located in Washington. So if they have property which is deemed located in Washington, and one of them dies, then at a minimum a determination will have to be made whether that decedent’s entire estate exceeds the inflation-adjusted $2,000,000 Washington exemption at the date of death. Under British law, the answer to that question could depend on which spouse dies, as England does not, to my belief, have community property law.

They should consider whether it would be advantageous to hold the property in an entity which would be deemed intangible personal property, as such property is considered located where the owner is domiciled, under Washington estate tax law. Also, entitizing the property to make it intangible personal property, and then having the first decedent’s portion pass to a trust could both reduce the estate tax value of the interest passed (assuming it is less than a controlling interest), and remove that interest from Washington for Washington estate tax purpose.

However, what if re-locating the real property, so to speak, to the law of the domicile actually creates a disadvantageous death tax situation?

Another consideration is that the U.S. property of persons who are non-resident noncitizens is treated differently from that of residents and citizens.

Then you have to recognize that a U.S. trust must have at least one U.S. trustee, in order to avoid certain tax consequences relating to recognition of taxable gains. So, if your friends/clients (remember, they are clients if you provide them with any legal advice, whether by forwarding answers form this list or otherwise) find that using a trust to hold the property is advantageous, they will have to consider how to deal with the U.S. person issue. [Note to “friends:” I am not your attorney, and if you read this I am not offering it as legal or tax advice. I recommend you contact legal counsel who can gather all the relevant facts and provide informed advice.]

My suggestion would be that if this seems too complex for you to educate yourself on, so that you can give them useful advice, then simply tell them this issue involves international complexities and tax issues which they should consult with knowledgeable counsel about. Or, you could just as well say that you can handle this but you will have to do some research on it, and give them your hourly rate, as well as agreeing on an amount they can agree to pay before re-evaluating. The lawyers in the big firms charge by the hour to educate themselves (or their junior associates) on these issues; it is not as though they come out of law school knowing everything. They develop expertise by learning while getting paid. If it’s over your head, either consult with someone who has expertise, or refer them to some such attorney. Who knows? You may become a local expert on this narrow field. Of course, that would mean you’d have to become a CLE presenter and article writer, etc.

Those are my thoughts.

S
Samuel L. Furgason
Samuel L. Furgason, Inc, PS
Law Practice Limited to Existing Clients
800 Bellevue Way N.E., Suite 400
Bellevue, Washington 98004
MAIL TO:
PO Box 102
Medina, WA 98039-0102
Work:    (425) 649-1122
Cell:       (425) 445-9909
Email: sam at furgasons.com<mailto:sam at furgasons.com>


From: wsbapt-owner at lists.wsbarppt.com<mailto:wsbapt-owner at lists.wsbarppt.com> [mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Felicia Value, Attorney at Law
Sent: Tuesday, November 11, 2014 1:40 PM
To: WSB Listserv
Subject: [WSBAPT] UK Citizens w/ US Real Estate

Hello Colleagues:

I have a question on behalf of some friends. They are UK citizens with their primary residence in the UK. They own some property in the US that they want to leave to their daughter.  Do they need a US Will to do that?  Is there some sort of ancillary proceeding that you open in the US to administer the property, even if the primary probate proceeding is in the UK?  I suppose they could add the daughter to the title as a co-owner with right of survivorship, but for exposure reasons I’m never crazy about that idea.  Should I tell them to consult US counsel,  or is this really simple and can just be dealt with easily in the administration of the UK Will?

I will forward your responses directly to my friends.  Thanks for any thoughts.

Sincerely,

Felicia Value
Attorney at Law
PO Box 578/116 North Third Street
La Conner, WA 98257
(360) 466-2088
www.skagitprobate.com<http://www.skagitprobate.com>

NOTE: I do not use encrypted email. Messages sent to or
from my office via email are not secure and may not be
protected by attorney client privilege. This email address
is not monitored at all times. If your matter is urgent,
please phone my office during regular business hours.

This email may contain confidential material protected by
attorney/client privilege, and is intended for use solely by the above
referenced recipient. Any review, copying, printing, disclosure,
distribution, or other use by any person or entity is strictly
prohibited and may be unlawful. If you are not the named recipient, or
believe you have received this email in error, please reply to the
sender and delete the copy you received. Thank you.

=======================

- To contact the list administrator, send a message to: webmaster at wsbarppt.com<mailto:webmaster at wsbarppt.com>

- To unsubscribe, send a new email addressed to: imail at lists.wsbarppt.com<mailto:imail at lists.wsbarppt.com>, with the following in the body of the message: unsubscribe wsbapt - OR - send a message to webmaster at wsbarppt.com<mailto:webmaster at wsbarppt.com> asking that you be removed from the wsbapt list.

Information provided on this list should not be considered legal advice. As with all lists - let the reader beware! No warranties or representations are made as to the accuracy of any information provided. All opinions and comments in this message represent the views of the author and do not necessarily have the endorsement of the Washington State Bar Association nor its officers or agents.
_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbapt
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20141113/040ab86d/attachment.html>