Feasibility of Bequeathing All Assets to Descendants in the U.S. Under New York Inheritance Law
If you want to inherit your assets to your American heirs, you can make your wills in NY.
But your all of assets will be relocated in NY, otherwise you need to pay the inheritance taxes in Korea.
1. Choice of Law in International Context
As a dual citizen of South Korea and the United States, international private law allows you to choose the governing law for your estate planning, provided it is permissible under the jurisdictions involved.
Under the principles of lex domicilii (law of domicile) and lex rei sitae (law of the property's location), the distribution of assets may be governed by:
The law of your domicile at the time of your death.
The law of the location where specific assets are situated.
Since your intent is to distribute your estate under New York law, you may need to declare New York as your domicile (or at least specify the application of New York law in your will).
2. Validity of the Will Under New York Law
New York recognizes wills that comply with its legal requirements, even if the testator is not a New York resident at the time of drafting.
To ensure the will is valid:
It must be written, signed, and witnessed according to New York’s legal formalities.
You may include a clause explicitly stating your intent to apply New York law to the disposition of your assets.
3. International Recognition of the Will
South Korea recognizes foreign wills under certain conditions. To avoid disputes:
The will should be prepared in accordance with the laws of the jurisdiction you choose (New York).
Consider having the will authenticated or recognized in South Korea to avoid conflicts under Korean law.
South Korean law imposes certain restrictions (e.g., statutory reserved portions for close relatives) that may conflict with New York law. However, as long as your assets are physically located in the U.S. and the will adheres to New York law, South Korea may not contest the distribution.
4. Practical Considerations
Asset Location: Ensure that the majority (or all) of your assets are in the U.S. to avoid complications under Korean inheritance laws.
Revocation of Korean Wills: If you have any existing wills drafted under South Korean law, you must explicitly revoke them in your New York will.
Legal Advice: Engage legal counsel in both jurisdictions to minimize potential disputes, especially if you have heirs in Korea who may contest the will.
5. Conclusion
You can structure your estate to be governed by New York inheritance law, but it requires precise legal drafting and coordination between the U.S. and South Korea to ensure the will is enforceable and minimizes conflicts under both jurisdictions. Consulting attorneys specializing in estate planning in New York and international inheritance law is strongly recommended.
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