Estate Planning Differences between Europe and the United States
Europeans who live in the United States are often surprised when they learn that many assets in the United States do not pass through wills, or the court-supervised probate process.
Probate is the formal proceeding through which the local court names a personal representative of the estate and supervises this person as he settles the estate: pays the debts of the decedent, files tax returns, gathers and distributes the assets according to the Will or the intestate succession rules.
The major differences between continental Europe and the United States are the following:
Property Titled Jointly with Right of Survivorship
Real estate owned jointly by two spouses is usually titled as a tenancy by the entirety. Upon the death of the first spouse his share legally dissolves and the surviving spouse becomes the sole owner of the entire property immediately, by operation of law. There is no formal transfer of property rights necessary. Courts are not involved.
Tenancy by the entirety is the most common form of joint tenancy with right of survivorship. It is, however, possible to set up a joint tenancy with right of survivorship by anybody and with anybody, even with several people. In that case the surviving person becomes the sole owner by operation of law.
Payable-on-death Bank Accounts and Transfer-on-death Financial Accounts
Virtually all contracts with a financial institution in the United States allow for a beneficiary designation. The designated beneficiary received the funds after the death outside of the probate process, based on the contract between the account holder and the financial institution. The transfer-on-death designation is the equivalent of this with respect to brokerage accounts: the securities are transferred to the designated beneficiary.
The vast majority of assets held in retirement accounts pass based on payable-on-death and transfer-on-death designations.
Minor children cannot inherit these assets outright. Even if the beneficiary designation does not mention a trust, the financial institution sets up a trust that holds these assets until the beneficiary’s 18th birthday.
Notaries vs. Attorneys
In the United States testaments are prepared by attorneys. There are no notaries such as those in continental Europe. The notary public that you occasionally encounter in the United States is not a trained jurist and is only authorized to authenticate signatures. This role is usually filled by secretaries, bank employees or other staff members that prove trustworthy.
Finally, another significant difference is the use of trusts in estate planning. Trusts neither exist nor are for the most part recognized in European countries. Trusts are not entities, or juridical persons. A trust is a legal relationship between a grantor (or settlor), the trustee who manages the trust assets and the beneficiaries. The grantor funds the trust with assets, and the trustee manages the trust assets for the benefit of the beneficiaries according to the trust instrument written by the grantor.
It is possible that the majority of the estate assets passes through these instruments and thus the will becomes less important. This shows that estate planning is much more than simply writing a testament. When setting up or redoing an estate plan, all assets and the modality of their succession need to be reviewed and the beneficiaries defined or updated.
From a tax point of view there is no difference among the various modalities of succession: for tax purposes the estate is calculated factoring in the non-probate assets.