# Which inheritance law applies?



## Eins (Jun 30, 2010)

Hello,
I am new to the forum. A German expat, living in the USA for over 13 years, I am nearing the age (and health) where facing mortality becomes a more common thought, and thus questions about writing a will become more pressing.

I still have my German citizenship and live here as a resident alien. My adult children, born in Germany, have a US mother and live in the USA. Their mother and I are divorced.

My question to you is: which inheritance law (US or German) applies to me and my children, provided I will die in the USA?

Thank you!


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## USC (Jun 13, 2010)

I presume you have been filing tax returns as a resident in the USA. Thus you will be subject to US Estate tax returns and law. I am not familiar with German Estate tax laws but they might also try to get their pound of flesh, more so if you own property in Germany.


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## Eins (Jun 30, 2010)

USC said:


> I presume you have been filing tax returns as a resident in the USA. Thus you will be subject to US Estate tax returns and law. I am not familiar with German Estate tax laws but they might also try to get their pound of flesh, more so if you own property in Germany.


Yes, I have been filing tax returns as US resident in the USA. There is no property of any kind left in Germany but real estate property in the USA is part of my estate.

Just to clarify: I am not looking for applicable TAX laws, only for INHERITANCE law, regarding to whom I can/have to give part of my estate.


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## Fatbrit (May 8, 2008)

Eins said:


> Yes, I have been filing tax returns as US resident in the USA. There is no property of any kind left in Germany but real estate property in the USA is part of my estate.
> 
> Just to clarify: I am not looking for applicable TAX laws, only for INHERITANCE law, regarding to whom I can/have to give part of my estate.


If all your assets are in the US, I find it difficult to see how any German court could gain jurisdiction. 

The fact that you have not naturalized (i.e. are still a permanent resident) and own US real estate could cost your heirs big time -- USCs and PRs are taxed differently. Know you weren't asking this......but it's something you should check out if you have not already done so.


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## USC (Jun 13, 2010)

Eins said:


> Yes, I have been filing tax returns as US resident in the USA. There is no property of any kind left in Germany but real estate property in the USA is part of my estate.
> 
> Just to clarify: I am not looking for applicable TAX laws, only for INHERITANCE law, regarding to whom I can/have to give part of my estate.


I presume that you are asking about mandatory inheritance laws? ie, in places like France and India there are certain classes of heirs whom you can't disinherit. In your situation, US/Utah inheritance laws would govern and you can make out the will any way that you want and are free to leave your real estate property to ANYONE that you choose.


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## Eins (Jun 30, 2010)

Fatbrit said:


> USCs and PRs are taxed differently.


Sorry for my ignorance, but what do USCs and PRs stand for?


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## Fatbrit (May 8, 2008)

Eins said:


> Sorry for my ignorance, but what do USCs and PRs stand for?


US Citizens and Permanent Residents.


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## Eins (Jun 30, 2010)

USC said:


> I presume that you are asking about mandatory inheritance laws?


Yes, that is what I meant, and your answer that US law would be applicable is what I was looking for. Thank you.


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## Eins (Jun 30, 2010)

Fatbrit said:


> US Citizens and Permanent Residents.


Duh! Thanks.

In that case, where my children are USCs, they wouldn't have a tax disadvantage. Right? I, the deceased (to be) don't pay taxes anymore, USC or PR, right?


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## USC (Jun 13, 2010)

Eins said:


> Yes, that is what I meant, and your answer that US law would be applicable is what I was looking for. Thank you.


Actually, it would be the law of the State where you are resident/domiciled. I am assuming that in your case that would be Utah. Linked below is the applicable section from the Uah bar. As you will see Utah doesn't have any mandatory inheritance laws (I believe that is the case in most if not all of the 50 States).

Utah State Bar Sections & Committees


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## Fatbrit (May 8, 2008)

Eins said:


> Duh! Thanks.
> 
> In that case, where my children are USCs, they wouldn't have a tax disadvantage. Right? I, the deceased (to be) don't pay taxes anymore, USC or PR, right?


I believe they might indeed have a tax disadvantage because of your status at the time of your death.


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## Bevdeforges (Nov 16, 2007)

There are both federal (US) and state inheritance laws to be considered here. Most states have some form of inheritance law that defines (among other things) who will inherit your estate should you die intestate (i.e. without a will), and what minimum amounts or portions of your estate must go to various people (usually relatives). 

If your will doesn't conform to the state law, it can be broken by any of the heirs (or anyone who should have inherited under the state laws). 

Other than that, the general rule of thumb is that the inheritance law of the country in which the deceased was resident at his or her time of death is the one that takes precedence. Except for "real property" (i.e. land and buildings), where the laws applicable to the country in which the property is located apply.

A local attorney, specializing in either "family law" or "elder care law" should be able to explain to you the state laws that apply as far as who you can or can't disinherit and who must inherit what proportion of your estate.
Cheers,
Bev


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## Eins (Jun 30, 2010)

Excellent! Thank you, USC and Fatbrit...and Bevdeforges


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## USC (Jun 13, 2010)

Eins said:


> Excellent! Thank you, USC and Fatbrit...and Bevdeforges


You are welcome. Linked below are two Wikipedia articles that you might find useful:

Forced heirship - Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Will_(law)

Also apparently, contrary to my earlier post, Louisiana is one State that follows France rather than England!!

The conception of the freedom of disposition by will, familiar as it is in modern England and the United States, both generally considered common law systems, is by no means universal. In fact, complete freedom is the exception rather than the rule. Civil law systems often put some restrictions on the possibilities of disposal; see for example "Forced heirship".

Forced heirship laws are most prevalent among civil law jurisdictions and in Islamic countries; these include major countries such as France, Saudi Arabia, Louisiana (in the United States)[2], Japan, and most other countries in the world.


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