Avoiding Forced Heirship of Foreign Property
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To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
Forced heirship represents a significant departure from the principle of testamentary freedom that exists in most Canadian provinces, such that you (as the testator) have the right to distribute your assets as you see fit, subject to provincial legislation that provides dependent relief where a testator fails to provide adequate support. In contrast, many civil law jurisdictions in Europe, Latin America, and the Middle East view inheritance as a familial right rather than a personal choice. Forced heirship rules in these countries mandate that a specific portion of the estate (often referred to as the reserved share or legitime) must be legally distributed to protected heirs (e.g., children, surviving spouse). This means that your testamentary attempt to leave your entire foreign estate to a single person or a charity could be legally voided or reduced by the laws of the country where the property is located.
The practical impact of these rules is most acute if you own immovable property, such as a vacation home or other real estate, in countries with forced heirship rules. Under the private international law rules, the succession of real estate is governed by the lex situs, or the law of the place where the land is situated. Consequently, even if your will is validly executed in accordance with applicable provincial laws, the foreign jurisdiction may ignore its distributive clauses in favor of its own mandatory heirship percentages. And even though there may be some relief available through particular international mechanisms (i.e., the European Union's Succession Regulation (Brussels IV)), these legal processes, where available, must be specifically addressed within your will and other estate planning documents.
There are a variety of legal strategies that may be available to yourself to properly deal with your foreign property, which is dependent on factual specifics (including the country and its laws, property specifics, preferences for disposition), which must be appropriately considered such that the proper legal strategy might be tailored for your foreign assets, including: the use of multiple wills (situs wills), corporate holding arrangements, inter vivos (lifetime) transfers (usufruct gifting), foreign trusts, tontine clauses (joint ownership).
Achieving the appropriate legal strategy when you own foreign property comes from addressing the matter early on with knowledgeable legal counsel that can properly investigate and coordinate to produce a will and other estate planning documents that optimize your outcome. We welcome you to contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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