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The Definitive Guide to Probate for Foreign Nationals

If you are among the thousands of foreign nationals who own real estate and other assets in Florida, be aware that Florida law has special requirements and protocols for non-U.S. citizens who own property in Florida at the time of their death. Probate for foreign nationals involves the intersection of state, federal, and international laws and thus requires special preparation and planning to minimize the financial impact on one’s estate. To preserve your wealth to the fullest extent of the law, you should employ a probate and estate planning attorney with experience and expertise in Florida probate as it pertains to non-citizens.

Understanding Who is a “Foreign National”

To better understand how probate will impact your estate, it helps to know the precise terminology and classifications used in U.S. immigration law. In both federal and Florida law, foreign nationals are classified as “aliens” rather than citizens, and aliens are in turn categorized as either “resident” or “nonresident.”

A resident alien is someone who is legally domiciled in the U.S., meaning they have either obtained a Permanent Resident Card (a.k.a. a “green card”) or have passed the “substantial presence” test, i.e. residing in the U.S. for more than a certain number of days in the past three years.

A nonresident alien is someone who has not met either criterion, such as certain international students, temporary workers, or visitors who have not been in the U.S. for the minimum timeframe.

Whether a foreign national is a resident or a nonresident, they still have certain rights (such as acquiring and owning U.S. property) as well as obligations (like paying taxes). However, how these rights are applied, such as with regard to probate, is a different story.

Probate for Foreign Nationals vs. Probate for U.S. Citizens

According to Florida probate law, nonresident aliens who pass away while owning property in the State and under their individual names will almost always have to go through the probate process, wherein the probate court supervises the gathering, administering, and distributing of the decedent’s assets. The type of probate that generally applies to nonresident aliens (as well as U.S. citizens or residents who are not residents of Florida) is called ancillary administration, and it differs in some of the documents and procedures that are required.

Foreign nationals who are also resident aliens, on the other hand, may have their estate be subject to probate in both Florida and their country of origin. Even if the main administration of their estate is based abroad, any property owned within the State of Florida is exclusively the purview of Florida probate courts.

For the numerous foreigners who have business interests and investments across Florida and the world, this can cause serious headaches for their loved ones. In an increasingly globalized economy, it can be difficult to parse what assets come under which jurisdiction.

Of particular concern is how the laws of the decedent’s country of origin may overlap and conflict with those of Florida – for example, some nations require that all assets of their citizens be taxed, including those abroad. In effect, this would lead to double taxation, with both U.S. and foreign tax burdens greatly minimizing the estate’s value.

Fortunately for some foreign nationals, the U.S. has entered into treaties with certain countries specifically to address this problem. U.S. resident aliens who are citizens of France, Germany, the U.K., Switzerland, Canada, and a few other countries enjoy the right to not have their real property in the U.S. taxed by their country of origin. Foreign nationals from Australia, Greece, Italy, and Japan (among others) will have their physical assets taxed only by the country where they are located.

Hire an Attorney Who Specializes in Probate for Foreign Nationals

Florida probate rules and procedures are complex enough without factoring in the unique challenges faced by foreign nationals.

Fortunately, Farshchian Law specializes in all aspects of Florida probate law, including how it impacts foreign nationals. We cover probate matters for the entire State of Florida, regardless of where the asset is or where the deceased passed. Call us today at (800) 604-1871, or email us at to schedule a free consultation.