Situs Wills, Trusts, and Power of Attorney Documents

Ideally, estate plans should be made in the jurisdiction where one’s assets are located. Some Americans living in Canada continue to own American assets, such as a home in the Sunbelt. Such individuals should therefore have an American estate plan that covers American assets and a Canadian estate plan for all assets held in Canada. It is also prudent to create power of attorney documents for all jurisdictions in which one retains assets and spends time.

Prior to moving, it is likely that Americans who relocated to Canada later in life drew up an American will, a US revocable trust, and/or incapacity documents, such as powers of attorney for property and health care. Canadian estate planning documents such as a will and/or trust, as well as incapacity documents such as powers of attorney for property and health care, have probably also been drafted if US citizens have lived in Canada for some time.

We assist our clients by reviewing their current estate plans to make sure that they work seamlessly together from a cross-border perspective. We also identify potential plans based on individual clients’ assets; for example, it may be clear that an American living in Canada should prepare a cross-border trust or alter ego trust and revoke their US-situs will to avoid or minimize state-levied probate fees and the time-consuming probate process. Establishing dynasty trusts and/or charitable trusts may also be helpful for Americans living in Canada.

Preparing comprehensive cross-border estate plans provides peace of mind for Americans living in Canada. Establishing power of attorney documents on both sides of the border guarantees that the substitute decision-maker of one’s choice will be able to act in both the US and Canada with respect to not only property, but health care decisions as well. It is also important that one’s estate plan considers domestic laws on both sides of the border to ensure the proper distribution of assets to heirs.

Not only can a cross-border estate plan provide peace of mind in this manner, but it can save money in terms of probate fees (as mentioned) and by considering the US estate and gift tax regime.