Houston engineers and geologists often take temporary assignments overseas. Before leaving, they should document their domicile, double check or make a Texas estate plan, and consider when, if ever, to make a foreign will.
Regardless whether a citizen, permanent resident, or illegal alien, if your home is here and you intend to stay, your domicile is Texas. Leaving temporarily does not change your domicile. If you die abroad, and your domicile at death remains Texas, a probate court here will have jurisdiction over your estate, including Texas real property and any and all personal property, even if located in another country.
Like most states, Texas does not maintain a residence registry. There is no form to perfect your Texas domicile. Instead, before leaving, make sure your personal business reflects that Texas is your home: voter registration, account statements, safe deposit boxes, driver’s license, vehicle registration, credit card accounts, passport, income tax returns, and homestead exemptions should all reflect your Texas mailing address, or at least your county.
The Texas Plan
Are you a Texan by choice? Your old will should not recite that you are a resident of California. Do you expect to sell or rent a house while on assignment? Is your business power of attorney effective immediately? Did you confirm it with the bank and title company? Is the named agent still willing and able to help? Where do you bank? Can you make cash withdrawals abroad? If not, switch banks before leaving, not after, and confirm your agent’s power of attorney will be accepted.
Probate and Situs Wills
Absent foreign real estate, probate abroad of a Texas will generally is not needed. For administration of a Texas decedent’s estate in a Texas court, the situs of personal property, including financial accounts, is determined by the decedent’s domicile at death, meaning Texas probate of your Texas will clears title to your worldwide assets, assuming you are domiciled in Texas at death and your only real estate is in Texas.
If you do decide to buy real estate while overseas, use a local lawyer to avoid probate. If that’s impractical, ask a local lawyer for a situs will, one limited to administration of local assets, so that it doesn’t interfere with your Texas plans. A Texas lawyer can provide simple language to add to the foreign situs will so that it complements rather than conflicts with the Texas plan. A few edits to a Texas will now can enable a foreign situs will to be drafted later without supervision by a Texas lawyer. In other words, plan now and draft later, with a minimum of extra expense.
For general resources, visit americansabroad.org/. For more on domicile, see afsa.org/residence-and-domicile. For tax information, go to irs.gov/individuals/international-taxpayers/taxpayers-living-abroad.
Lawyers tackling these issues for the first time will benefit from Streng & Davis: Retirement Planning: Tax & Financial Strategies (WG&L) (Part VI. Multijurisdictional Planning at Retirement). For model situs language, see R. Glenn Davis, International Issues in Estate Administration, in 26 Advanced Estate Planning and Prob. Course Exhibit E (2010) (Sample Revocation and Scope of Disposition Provisions). For a succinct discussion why it’s so hard to avoid probate in other countries, read Jetel & Fitte, Dealing with International Assets in Estate Planning, in 7 Intermediate Estate Planning & Probate (2016). Finally, if you insist on understanding everything before you do anything, look at Brian P. Tsu, What Every Domestic Estate Planner Should Know about International Estate Planning, in 26 Advanced Estate Planning & Probate (2018).
Finally, if the expat returns with a new spouse, here’s my thoughts on foreign wills.