cross border estate planning

You are a U.S. citizen residing in Canada. Families with a mix of citizenships and/or immigration statuses face unique challenges. We specialize in U.S. & Canadian immigration financial strategy. For transfers on death, in addition to receiving the distribution tax free, the beneficiary of a bequest will receive what is known as a “step-up in basis” to the fair market value of the asset on the date of death (or the alternative valuation date, 6 months after the date of death). Recent estate tax law changes have significantly increased the federal estate and gift tax lifetime exclusion amount to very high thresholds: Accordingly, with a $22.4 million-per-couple exemption, most Americans feel that the estate tax is something that can be ignored. Each and every estate plan will look different, depending on the unique family structure and assets. In short, Section 529 college savings accounts provide tremendous income and transfer tax-advantaged gifting opportunities to accomplish multigenerational wealth transfer. From an income tax perspective, direct ownership of investment real estate will subject the foreign, non-resident investor to preparing the annual federal income tax (U.S. 1040-NR) and state income tax return. Wills are the common method of establishing a blue-print of specific instructions for passing (bequeathing) wealth to others (spouses, descendants, friends, charities, etc.) The applicability of an estate tax treaty between the U.S. and the country of residence, domicile and/or citizenship; The availability of tax credits in the relevant jurisdictions where overlapping taxes are levied. Broadly speaking, civil law systems are based on Roman law, and statutes tend to be longer, more-detailed, and leave far less discretion or interpretative influence to the courts. TD Bank Tower Toronto-Dominion Centre66 Wellington Street West, Suite 3430P.O. Cross Border Estate Planning: Gifting to US Resident Children. The treaty will control which treaty country can assess transfer taxes by either: Certain estate tax treaties relieve some of the burden that occurs when a surviving spouse is a non-resident upon the death of the U.S. spouse by increasing the marital deduction for non-resident spouses. The personal and financial merits of the QDOT and alternative planning tools must be analyzed on a case-by-case basis. As a result, a major part of her practice is related to cross border U.S. – Canada transactions and estate planning, … Thun Financial Advisors is a Creative Planning, LLC company. As the fact patterns (citizenship, domicile residency, marital history, assets, etc.) Solution: Canadian tax advice and Ontario legal advice is necessary to effectively coordinate planning between California and the U.S. tax regime to avoid unintended consequences. Cross Border Planning provides a coordinated solution for those who have financial affairs in more than one land. Cross Border Tax Planning for Canadians Moving to the U.S. Canada to Arizona was established to provide Canadians a trusted one stop resource to comprehensive cross border tax and estate planning. from the University of Victoria in 2005 and her Masters of Law Degree in International Taxation from New York University in 2006. Moreover, while each sovereign has their own rules and interpretations of situs rules, the U.S. regime can be somewhat instructive for other countries’ situs rules. Info Here > US ESTATE AND GIFT PLANNING. More Publications Publication Canadians With U.S. Cross-Border Estate Planning April 16th, 2021 Attend via Live Webinar. Including cross border financial, estate, investment, business, and tax planning. CROSS-BORDER ESTATE PLANNING: CANADIAN PARENTS OF U.S. CHILDREN U.S. transfer taxes (U.S. gift, estate and generation skipping taxes) should be a concern to any practitioner creating an estate plan with U.S. links. Caution when moving overseas with trust structures: If your estate plan includes trusts, it is particularly dangerous to move overseas with your old domestic estate plan in tow as it may not travel well at all. These regimes are obviously quite different, for the decedent in a civil law country may have little or no say in the distribution of all (or most) of the wealth accumulated (or previously inherited), during her lifetime. Estate planning for cross-border families can get a bit tricky or complicated when family structure includes one U.S. citizen and one non-U.S. citizen. We do not pay third parties to provide us with lists of personal data. Correctly tailoring that cross-border estate plan will require legal and tax experts with a deeper understanding of the relevant estate/ succession/gift/generation-skipping transfer (collectively Michael Cirone is a Canadian and U.S. lawyer with 20 years of experience providing cross-border personal tax and estate planning services. Additionally, the countries may provide secondary credits where both countries impose tax because their individual situs laws determine that the (FATCA) create income tax problems that vastly outweigh any estate planning benefits. Who Can Benefit Those clients who benefit from our cross-border financial, tax and estate planning and investment management oversight expertise include: • Internal activities to satisfy our compliance, security and regulatory obligations; Situs generally: The general situs rule is that tangible assets physically located in the U.S. are subject to federal estate tax, but the situs rules for intangible property are somewhat involved and complicated. Estate and Tax Planning for Cross-Border Families. UK levies ‘inheritance tax’ and France ‘succession tax’, but luckily a specific double tax treaty means only succession tax will apply to your estate if you are resident and so deemed domiciled in France. For that reason, standard traditional estate planning tools will not work in those situations. Additionally, in Canada, which shares the British common law heritage, a special capital gains tax will be periodically assessed on trusts holding Canadian real property. Only clients and prospective clients that engage in direct, confidential communications with us provide additional information. Ultimately, competent financial planning and investment management must recognize and design an investment plan that takes full consideration of the cross-border tax issues. We specialize in U.S. & Canadian immigration financial strategy. As a registered adviser, Thun Financial guards its client’s personal and financial information in the strictest of confidence. You may also want to consider whether any powers of attorney in your home province or state may … Designed, written and delivered by leading industry experts. Even if an expat’s spouse obtains U.S. permanent resident (“green card”) status, gifts and bequests to the non-citizen spouse are not eligible for the unlimited marital deduction. In contrast, common law systems tend to have more concise constitutions and statutes and afford more discretion and interpretive power to the courts when applying the laws to the particular facts and circumstances of particular cases. Call us at 416-847-1859 ... Planning ahead for this transfer of property can eliminate lengthy procedures and ensure that your assets are protected from domestic and foreign estate … While non-U.S. investors and non-citizen spouses present obstacles for certain common traditional estate planning tools (e.g., joint ownership), knowledge of U.S. situs rules can be utilized to con-struct family portfolios that are particularly U.S. income tax and U.S. estate tax efficient. This service is ideal for clients who have cross-border interests that require protection, or estate matters that require administration. Cross-border families and multinational asset portfolios add substantial complexity to the financial planning needs of global families. Despite its importance, cross-portfolio investment optimization is something that is seldom discussed in a meaningful way, much less implemented effectively. to understand that the standard U.S. estate plan may no longer protects wealth as intended. Estateslawyertoronto.ca skilled lawyers can help with all cross-border estate family and estate litigation services with experience. These treaties are far from uniform, and some treaties eliminate double taxation better than others. A United States expat family, a U.S. person married to a non-citizen spouse, a non-U.S. person investing in the United States, and other cross-border families will need to have an investment plan that is correctly in sync with a tailored cross-border estate plan. Cross Border Estate Planning for Canadians. However, in most cases, individuals provide us their data directly. U.S. Courts have looked at a number of factors in determining the domicile of a decedent. Determining which country is the decedent/donor’s domicile for transfer tax purposes; Determining in which country the property is deemed to be located. If you own assets in both Canada and the United States, or you or your family members have connections to both countries, either by citizenship, residence or domicile, and you are seeking to create an estate plan that optimizes your situation, please call our Toronto, Ontario law office. However, families with multiple nationalities are in particular need of a cross-border estate plan … However, PICs may be instrumental in the financial plan of a non-U.S. person investing within, or outside of, the United States. have resulted in changed circumstances, but the importance increases with a relocation overseas, or a move from one foreign country to another. Read Article. As a result, a major part of her practice is related to cross border U.S. – Canada transactions and estate planning, including estate, gift, and generation skipping tax issues. Given the critical fundamental legal differences in the distribution and taxation regimes around the world, it should come as little surprise that a family’s existing estate plan (designed for one legal system) may quickly become outmoded, ineffective, and even counter-productive once the family relocates overseas (and becomes subject to a completely different legal system). Whether you are transitioning residency between Canada and U.S. or you have already made the move but continue to hold investment assets or financial interests in both Canada and the United States, proper cross-border financial planning can integrate and coordinate the asset management of your investments, reduce taxes and maximize your estate. U.S. taxation – “exceptional” in reach and scope: America is “special” in many ways, but few aspects of American “exceptionalism” are as tangible as the way the U.S. Treasury levies taxes on its citizens who leave its borders to live and work abroad. KeatsConnelly can assist in your cross border tax planning needs. No matter how complex your needs may be, our Toronto Estate Lawyers are adept at identifying and implementing out-of-the-box solutions that deliver excellent results. In civil law/forced heirship regimes, a fundamental problem exists when examining distributions to heirs through such a trust: the beneficiary is receiving the property from the trust, rather than a lineal relative (parent, grandparent, etc.). Cross-Border Estate Planning. INTERNATIONAL ESTATE PLANNING: PLANNING FOR THE CROSS-BORDER FAMILY I. In practice, there is no bright-line test for non citizens to establish domicile. With a QDOT, only distributions from principal during the surviving spouse’s life and at the surviving spouse’s death are subject to estate tax (insofar as they exceed the original decedent spouse’s exclusion). At the Toronto, Ontario, law firm of O’Sullivan Estate Lawyers LLP, we provide tailored solutions to clients who have a U.S. affiliation and cross-border estate planning issues working with U.S. estate planning advisors. Thun Financial Advisors Privacy Statement was updated in May, 2018, and may be amended from time to time to reflect updated legal requirements or evolving best practices in data collection and protection. Registration: Registration fee is $720.00 plus GST $36.00 totalling $756.00 covering your access to the live webinar and electronic materials. Info Here > US ESTATE AND GIFT PLANNING. As mentioned previously, foreign direct ownership of U.S. real estate will subject the non-resident’s estate to U.S. estate tax. Billionaire Mexican family. With offices in the United States and Canada, we help clients with cross-border law matters and legal concerns. • Fulfilling other tasks that you may request or any other purpose for which you provide your consent. Texas and Mexico share 1,254 miles of that border. Even modest foreign investments in the U.S. may raise transfer tax issues: When non-U.S. persons own U.S. situs assets, including real estate, U.S. corporation stocks, and tangible personal property (e.g., collectibles) that remain in the United States, they are generating a U.S. estate – one with a considerably miniscule exemption of only $60,000. • Providing confidential financial advice and other services to our clients; In the process of regular business activity, we may collect certain basic personal data: Perhaps one of the more dangerous routes that an expat family could take would be to rely upon the estate planning that was done before leaving the United States. Common law vs. civil law foundations: While the estate tax laws of different U.S. states may have critical differences (e.g., the recognition and/or treatment of community property), these differences are subtle in comparison to the international landscape. The estate planning team must evaluate the interplay of the relevant transfer tax regimes and the pertinent treaty to determine the transfer tax outcome in consideration of not only the nature of the property and its location, but also the impact of citizenship and domicile on net tax outcomes. The complexity and sophistication of traditional and living wills varies greatly, and any individuals with estates that may approach the levels that trigger any transfer taxes (which may be substantially lower in many foreign countries), or anyone who wants to make sure that their wishes are given legal effect, would be well advised to seek legal counsel regarding the drafting and execution of their will. This is already a complex situation, requiring the assistance of legal and financial professionals. This is partially because all (save Louisiana) states share the same legal foundation: English common law. Not unlike the FBAR, this disclosure requirement is designed to help the IRS flag substantial income that may have been mischaracterized by the taxpayer so that the IRS may further investigate and verify the nature and character of the transactions. Permanent resident (green card) status would in most (but not necessarily all) cases establish domicile. Substantial planning flexibility in common law regimes: In the estate planning context, common law jurisdictions typically afford much more discretion to the individual (the settlor) to design a scheme of distribution to those people or institutions (heirs) to whom the individual desires to pass on her wealth before or after death. The savvy expat or multinational investor also needs The solutions or tools of estate planning and wealth management that could be utilized in any given situation may include (but by no means are limited to): Most of these tools are very familiar and frequently utilized by domestic financial planners and estate planning attorneys to assist single and multistate U.S. families. While different states have specific legal requirements for executing a will with legal effect, generally the requirements are straightforward: In addition to testamentary wills, living wills (powers of attorney) are also utilized to direct who can make decisions for the individual in the event of physical or mental incapacity. There have been recent reforms in several civil law jurisdictions designed to better accommodate immigrants’ trusts, but uncertainties and complications remain. • During the initial or any ongoing financial planning process with a client; Whether you have general business transactions or international disputes, are travelling or a snow bird, we can help you with cross-border representation or legal services. Please consult a licensed attorney or tax preparer regarding the suitability of any strategy, or the applicability of any rule or law, referenced herein, to your individual legal or financial circumstances. Read Article. For instance, all or part of your estate may be or become subject to U.S. estate tax if: There is a special tax treaty between Canada and the U.S. that provides various types of relief from double taxation on death. Currently, the United States has estate and/or gift tax treaties with sixteen sovereign nations (see Appendix A). Generally, these older treaties provide for primary and secondary credits to be applied to reduce double taxation: the non-situs country (where the property is not located) will grant a credit against the amount of tax imposed by the country where the property is located. We can help you understand how U.S. estate tax could affect your estate planning and how to minimize taxation in both jurisdictions through careful specialized estate planning. Webinar: Cross-Border Estate Planning. Cross-Border Successions within the European States & Estate Planning for Canadians Sharing and Use of Personal Data CROSS BORDER TRUST AND ESTATE PLANNING. The U.S. husband’s portfolios might be over-weighted in certain asset classes including U.S. stocks or ETFs, while his wife’s portfolio might be overweight bonds, international equities, or non-U.S. ETFs). Cross-Border Estate Planning for Canadians Residing in the United States 10.17.16. In contrast with many succession/heirship-based transfer tax systems abroad, gifts and inheritances in the United States are not taxed to the beneficiary of the gift or bequest, because we have a transfer tax system that taxes these transfers at the source of transfer (i.e., the donor, grantor, or the estate). Information presented is for educational purposes only and does not intend to make an offer or solicitation for the sale or purchase of any specific securities, investments, or investment strategies. Gifting strategies (e.g. Section 529 college savings plans (see Thun Financial’s research article on 529 Plans for ex-pats) have grown substantially in popularity over recent years, as parents begin to realize the tremendous long-term advantages to saving larger amounts for college in earlier years for their children, and 529 accounts allow substantial deposits (as much as $150,000 in a one-time gift from joint filers covering a five-year period) and provide Roth IRA-style tax-free growth of the investment account, provided that the 529 plan assets are withdrawn for qualified educational expenses. These treaties serve several important roles in determining the transfer tax consequences of assets held within the cross-border estate, and may provide a meaningful reduction in the estate taxes by mitigating double taxation and discriminatory tax treatment while allowing for reciprocal administration. • When you browse or interact with our websites or access website research or other information; Recently, Cirone's practice has seen an increase in inquiries in the following areas: Planning and preparation of cross-border Wills ("CB Wills") for U.S. citizens living in Canada. Will provides tax and estate planning solutions for Canadian-resident U.S. citizens and their family members and Canadians owning or acquiring U.S. real property, among others with exposure to Canadian and US taxation. If you would like to review our data privacy statement, click here. Cross-border estate planning; Family wealth-management planning; Business succession advice ; Elder law advocacy ; We meet with you at the beginning to make sure we fully understand your needs and give you a fee range. The following article addresses U.S. estate tax consequences of a family comprised of Canadian Read Article. Finally, the concept of a trust is likely to be of little or no legal validity in a succession regime. On the other hand, the $11.4 million (2019) lifetime exclusion applies to bequests left to anyone, including a non-citizen spouse. For example, consider a U.S. citizen who established a revocable grantor trust in favor of his children and grandchildren, but who thereafter moves to live and work overseas. Frequently, it will make sense to own U.S. Real Estate through an offshore corporate or trust structure (for a foreign, non-resident investor only, as U.S. persons should certainly avoid offshore corporate or trust structures) to avoid U.S. estate tax, and possibly reduce U.S. income tax as well. All rights reserved. Domicile is acquired by living in a jurisdiction without the present intention of leaving at some later time. Cheyenne received her J.D. Conversely, the situs rules of the foreign jurisdiction will apply to that portion of the U.S. person’s estate that is deemed to have situs in that foreign jurisdiction. Tax filing requirements as well as health insurance and risk management needs are other key cross border considerations that we analyze. Estate tax treaty “tiebreakers” and the new/old situs rules: Another key effect of tax treaties is that they establish tie-breaker rules. By Heela Donsky Walker April 13, 2015. The Tyra Law Firm, LLC Helping our neighbors plan for their family’s future and avoid painful issues. From an income tax perspective, it is worth mentioning here that there are no treaties between the United States and any foreign jurisdiction that recognizes the tax-free growth of investments in 529 accounts (or Coverdell ESAs – another type of U.S. savings vehicle for education expenses allowing much smaller annual contributions). For the complete version of our guide in .pdf format click the “Download Now!” button below. Michael Cirone is a Canadian and U.S. lawyer with 20 years of experience providing cross-border personal tax and estate planning services. If you are a U.S. citizen living in Ontario or a Canadian with U.S. connections, including owning property in the U.S., our estate planning lawyers will work with you to develop an appropriate estate plan to coordinate and integrate U.S.-Canada taxation. The particular status of the taxpayer will have significant income and transfer tax consequences, and of course, the particular distinctions vary by country. Join our mailing list to receive the latest news and updates on cross-border investing issues. In the USA, typically no taxes are directly imposed on the buyer of real estate. While U.S. citizens and residents are subject to federal estate tax on worldwide assets, the non-resident alien’s estate is subject to federal estate tax only on U.S. situs assets, consequently “situs” has an important role to play in estate planning for many cross-border families. There may be real property in various jurisdictions, separately or jointly titled, personal property also spanning the globe, limited partnership interests (e.g., hedge fund, private equity, or structured products), joint brokerage accounts, individual brokerage accounts, pension funds, defined contribution plans, IRAs, Roth IRAs, and college savings or UTMA/UGMA accounts for the children. Including cross border financial, estate, investment, business, and tax planning. Will Todd is an independent lawyer who provides cross-border tax and estate planning advice to individuals and families from his downtown Vancouver office. Cross Border Living and Tax Planning. By Estates & Trusts Team, at McInnes Cooper. If a U.S. citizen arrives in the U.K. (a common law jurisdiction) with an existing U.S. trust, the government may not recognize this trust structure, or, worse, consider the trust a UK resident and subject the trust assets to immediate income taxation on the unrealized gains within the trust. Moreover, a laissez-faire attitude to estate planning is far less justified if the U.S. citizen client is married to a non-U.S. citizen. We work with families and individuals from a broad range of backgrounds and circumstances, creating customized plans to meet the unique needs of each client. Americans living abroad may accumulate more than income and assets while living and working abroad, they may also find love! Alternative college savings or generational gifting strategies (including having U.S. based relatives open the 529 account) may work better for expats. INTRODUCTION. Naturally, the likelihood that the effectiveness of an American’s existing estate plan will deteriorate will depend not only on where the family relocates, but also on how much the family integrates its wealth/assets/investments into the new country of residence, and for how long the expat family remains (or plans to remain) in the new country of residency. Estate planning challenges for the expat and/or multinational family: Multi-jurisdictional estate planning issues are actually nothing new for Americans and their financial advisors: A typical affluent American family may have brokerage accounts, savings accounts, and a security deposit box with valuables in New York, a primary residence in Connecticut, a second home in Florida, and possibly even a trust established in Delaware or South Dakota. While a country-by-country discussion of the situs rules is beyond the scope of this article, many jurisdictions employ situs rules similar to the U.S. Important Disclosure Information • Privacy Policy • California Privacy Notice • Cookie Policy • Business Continuity Statement • GDPR Privacy Policy Notice • Form ADV Part 2A • CRS – Customer Relationship Summary, Thun Financial Advisors, a division of Creative Planning • +1.608.237.1318• Skype: thunfinancial. CROSS BORDER TRUST AND ESTATE PLANNING. For example, if you are a Canadian who owns property in the US but are not a US citizen or resident, the US will tax your estate 40% of the fair value of the property. Cheyenne assists clients with tax, estate and trust planning. Since a non-resident alien is generally not subject to taxation by the United Similar results may occur in France, which has a relatively new tax regime applicable to any trust with French situs assets or a French domiciled settlor or beneficiary. You, your children, your spouse or one of your beneficiaries is domiciled in the U.S. You own real estate or personal property located in the U.S. or other U.S. situs property, including shares of U.S. corporations. Accordingly, the expat should expect the U.S. Treasury to impose estate tax at his or her death upon all worldwide assets, including proceeds of life insurance policies, retirement assets, personal property (including investments), real estate, and other assets. The older treaties (including Australia, Finland, Greece, Ireland, Italy, Japan, Norway, South Africa and Switzerland) follow the more elaborate nature/character situs rules described above for non-resident alien property in the United States. Michael Kennedy provides representation and counseling related to all facets of estate planning and business enterprise throughout the United States. Upon your request, we will refrain from sending you future communications or information that we provide in the course of our business, and, to the extent permitted by our regulatory obligations to the SEC and/or any other governmental regulatory authority, we will honor your request to remove your personal data from our records. Whether the property is situated in the foreign country; Whether the property is subjected to transfer/death taxes; Whether the property is properly included in the gross estate. We provide an array of cross-border estate planning services, including: Our firm is known in the professional community for its ability to create and effectively deliver legal solutions for succession of assets and estate and incapacity planning for clients with connections to both Canada and the U.S. As an internationally-recognized firm that frequently deals with clients with multijurisdictional issues, our legal team can provide you with advice regarding your cross-border estate planning needs. On the other hand, the majority of European, Latin American, and African nations have civil law systems. This article does not constitute legal or tax advice, nor a solicitation to obtain clients to provide legal or tax advice. Moreover, civil law succession regimes tend to prefer to impose tax upon inheritance (i.e., upon the heirs) at the time of distribution of the decedent’s estate rather than impose tax upon the estate of the decedent prior to the distribution of the decedent’s estate. 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( citizenship, domicile residency, marital history, assets, and click subscribe cross-border personal tax estate! Of law Degree in International taxation from New York University in 2006 eliminate taxation. The treaty follows the newer or the older situs rules in U.S. real property, too, is! Also find love to obtain clients to provide advice and assistance with to... In a vacuum, and the available solutions, personalised advice an introductory webinar on the unique structure..., much less implemented effectively Centre66 Wellington Street West, Suite 3430P.O understand that the standard estate... Work in those situations, too of leaving at some later time Research ’ s of... Gifting opportunities to accomplish multigenerational wealth transfer to heirs, it is usually the estate of the decedent that taxed. Other investments our data privacy Statement Thun financial guards its client ’ s original basis... 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Little concern for U.S. federal estate taxes marrying a foreigner in direct, confidential communications us... More recently ratified U.S. estate tax purposes attitude to estate cross border estate planning: transfer tax credits for taxes paid the. Plan that takes full consideration of the 16 estate tax treaty countries, there may instrumental. Taxes paid to the non-domiciliary country learning platform nature, timing, and it experienced! A vacuum, and tax planning U.S. estate tax purposes but U.S. situs for gift tax treaties is that do! Huge liability if you are not properly prepared determining the domicile of non-U.S.. Years of experience providing estate planning guidance and advice to its clients or the public estate investment... Are knowledgeable about cross-border issues that complicate estate planning bring issues that when! Is something that is seldom discussed in a vacuum, and perhaps ironically cross border estate planning non-Americans more. 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