Florida Probate for Resident Aliens

and Non-US Citizens

placeThe importance of estate planning for resident aliens and non-US citizens owning property in the State of Florida cannot be over-emphasized.  Due to the correlated impact of state law, federal law, and international law, it is important for resident aliens and foreign nationals who own property in Florida to prepare for the legal impact their death may have upon their estate.

Who is a resident alien or foreign national, non US citizen?

Anyone who was born outside the United States of America’s borders is considered a foreign national, a non US citizen, if they have not been naturalized under federal law and they are subject to the laws of another country.  Under federal and state law they are not “citizens” and are therefore “aliens.”

Aliens are subsequently categorized as either “resident” or “non-resident” in status.  Resident aliens are legal domiciled in the U.S. and enjoy many of the same benefits as American citizens.

Probating the Resident Alien’s Estate

Under Florida’s state law, non-resident aliens who die while owning property in Florida will have to go through a probate administration in a Florida court in the majority of situations.  Resident aliens will need to have their estate probated in the country where they lived as well as in Florida, if they owned property within the borders of the State of Florida at the time of their death (including boats, etc.).

Additionally, laws of the country of origin for the decedent may have overlapping probate implications.  The Last Will and Testament of the decedent may impact assets held not only in Florida or the United States, but in foreign nation(s) as well whose laws will impact the particular situation.

For example, the United States has entered into treaties with many foreign countries which limit the amount of double taxation upon an individual estate’s property, or completely prevent it, depending upon their negotiated provisions.  Probating of the resident alien’s estate will need to insure that the requirements of foreign law are met, such as:

1.  Treaties granting right to tax to the country of domicile except for real property and property associated with a permanent business establishment in the country where the land or business is physically located:

  • Austria
  • Denmark
  • France
  • Germany
  • Netherlands
  • Sweden
  • United Kingdom

2.  Treaties granting right to tax to the country where the asset is physically located at the time of decedent’s death:

  • Australia
  • Greece
  • Finland
  • Ireland
  • Italy
  • Japan
  • Norway
  • South Africa
  • Switzerland

If you have comments or questions regarding how a Florida probate lawyer at the Law Offices of Adrian Philip Thomas, P.A. might be of assistance in your particular case, please feel free to contact the firm’s office to schedule a free initial consultation with one of our attorneys. 

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