About: Liza Weiman Hanks

Dear Liza: I would like to know if my wife and I had a will drawn up in Colorado and now reside in Arzonia do we need to have it redone? If your Will was valid in Colorado, it will be valid in Arizona. Both states require that a Will be in writing, be written by someone over 18 years old, and be witnessed by two people.   Still, if you plan to stay in Arizona, you should consider doing a new Will in Arizona–certain provisions of state law differ and an estate planner in Arizona could tell you which ones.  Also, if you have moved to Arizona permanently, you should re-do your Durable Power of Attorney and Advance Health Care Directive–both documents name Agents to act on your behalf if you are incapacitated (one for health care and one for finance), and these documents tend to be state specific and you want them to be honored by state hospitals and banks without fuss. I’ve linked each document to a form that you can use in Arizona.

Dear Liza, I would like to give my son $200k to upgrade homes.  Can me and my wife each give $13,000 to my son, daughter in law, and two grand children?  That would be $102,000, and then apply the remaining $98,000 to the unified tax credit.  Can I write it all in one check for the four of them? You can write one check for your son and daughter. You can now give $14,000 per person, so you and your wife can give, together, $56,000 to them, as an annual gift, and the remainder can be reported on your gift tax return, filed in April of the following year. If your grandchildren are minors, though, you have to give them a gift into a custodial account, a trust, or a 529 educational savings plan.  Children under the age of 18 can’t own property worth more than a nominal amount without a custodian to manage that money.

Dear Liza: My brother and I are dual citizens (Japan and US).  We both reside in the US. Our Japanese mother recently passed away. She had some cash/ stock/ annuities/ mutual funds in the US, and some property in Japan that we will inherit jointly, with no disputes. She has a social security number and had a green card at one time, many years ago. She has not lived in the US for over 30 years. There was no will. Given that she was a non-resident foreign national, do we have to go through probate to distribute her US assets (around $650,000)?  Sorry about your Mom. To settle your Mom’s U.S.-based estate you are going to need a probate proceeding to transfer the assets because your mother didn’t leave a Will. This is not because she was a non-resident alien.  This is because she owned significant property in her own name.  That means that you and your brother are going to inherit her property as the intestate heirs (that’s state law for who inherits when someone dies without a Will). Because she owned property worth more than a minimal amount, you will need a court order to get those assets transferred to you, which is the end result of a probate proceeding.

The issues that relate to her citizenship status is this: your mother’s estate is going to have to pay U.S. estate tax.  The rules for non-resident, non-citizen owners of U.S.-based property are complex, but basically, her estate will be taxed on U.S. assets worth more than $60,000. Japan, though, has a taxation treaty with the U.S., so her estate won’t be subject to double estate taxation (in both the U.S. and Japan).   Click here for a link to an IRS summary of these rules.

Dear Liza:  My mother, suffering from Alzheimer’s, is completely mentally incompetent and living in a nursing home in Arkansas.  I have only recently learned – surprise! – that she does not have a will.  With my father and brother already deceased, I am her only legal heir, but I fear the difficulties in settling her estate upon her death.  Is there anything I can do now to ease that transition, or I am simply going to have to bite the bullet and hire an attorney?  I do hold her Power of Attorney, but I know that does not grant me the right to write a will on her behalf. I am sorry to hear that your mother is no longer able to manage her own affairs.  You are absolutely correct that, at this point, you don’t have many options in terms of putting a Will in place for her. She can’t write her own now that she doesn’t understand what she would be signing, even if she’s still capable of physically signing a document.

The only legal avenues available to you both involve working with the probate court in the county where your mother lives (and, unfortunately, this also probably involves working with an attorney). You could petition the court to be named your mother’s conservator.  If this petition is granted, you would then be  your mother’s legal guardian, and in a position to have a Will drafted for her, but conservatorship is a long and complex process which will require court hearings, proper notice, and an investigation to determine your mother’s competence and your suitability as her conservator. If you are her only  heir, you could also wait until she dies, then  inherit under your state’s intestacy statutes, which would require a probate proceeding upon your mother’s death, if her assets exceed the small estates limit in Arkansas, which is currently $100,000.