Navigating Probate When the Decedent is a Non-U.S. Citizen/Non-U.S. Resident

Ray O. Boone
Oct. 7, 2025
Documents for Last Will & Testament

It is safe to say that a majority of Florida probate administrations involve one of two scenarios. One, the decedent is domiciled in the state, so a domiciliary probate administration is opened. Or two, the decedent owned real property in the state, so an ancillary probate administration is required. But what happens when the decedent was a non-U.S. citizen/non-U.S. resident who passes away with assets, other than real property, located in the U.S.? At this firm, we have increasingly encountered the following fact-pattern:

  • Non-U.S. citizen/non-U.S. resident owns an investment account or bank account in his or her sole name at an institution located in the U.S.

  • The financial institution has a policy of prohibiting the addition of transfer-on-death or pay-on-death beneficiaries to the account.

  • The account holder passes away and the beneficiaries/heirs, most or all of whom are non-U.S. citizens/non-U.S. residents and who have no familiarity with U.S. estate administration laws, are left in limbo with seemingly no way to access the account.

There are options other than probate a beneficiary can explore to gain access to said account (e.g., Certificate of Transfer); but ironically, probate can be the most efficient way to access and distribute this type of asset. Below is a general outline of the issues to be concerned with during this niche type of probate administration. For the purposes of this article, we will call this type of probate administration an “international probate administration.”

Appointing a personal representative

Per Florida Statutes, the personal representative is a fiduciary who has a duty to settle and distribute the decedent’s estate pursuant Florida law. Other states may use the term “executor.” One of the first hurdles in an international probate administration is identifying who should serve as the estate’s personal representative. There are three main factors to consider when selecting this person:

  • Is the potential personal representative a resident of the State of Florida? If not, that person can only qualify to serve as personal representative if they are “(1) a legally adopted child or adoptive parent of the decedent, (2) related to the decedent by lineal consanguinity, (3) a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to such person, or (4) a spouse of a person otherwise qualified under this section.”

  • Does the potential personal representative have a social security number? A social security number is typically needed to apply for the estate’s Taxpayer Identification Number (“EIN”).

  • Can the potential personal representative easily visit the financial institution to gain access to the account? Once the probate court issues the Order Appointing Personal Representative and Letters of Administration, it is typically the duty of the personal representative to visit the institution where the asset is located, present the Order and Letters to the institution, and to collect the probate asset. Obviously, this task could be incredibly difficult for a personal representative living outside of the U.S.

It is often impractical for family members of the decedent to serve as personal representative with this kind of fact pattern—especially if that family member lives outside the U.S. For that reason, in our firm’s international probates, an attorney from our office has often served as personal representative to facilitate as smooth a probate administration as possible.

Obtaining the EIN

In a probate administration, applying for and obtaining the EIN is usually one of the more simple tasks. The EIN is needed for filing any tax returns on behalf of the decedent, for opening any bank accounts in the name of the estate, or for retitling financial assets in the name of the estate. With most formal probate administrations, it is typical to apply for the EIN online. To do this, you are required to provide the personal representative and decedent’s social security numbers on the online application. Obviously, a non-U.S. citizen does not have a social security number, so this is not an option. To acquire an EIN for an international probate, fax the application directly to the IRS instead. If an attorney or U.S. citizen is serving as personal representative, their social security number should go on the IRS Form SS-4—the section for the decedent’s social can be left blank.

Taxes, Taxes, Taxes!

This is arguably the most important topic to consider in an international probate administration. This is because, in general, the federal estate tax exemption for non-U.S. citizens is $60,000 (as opposed to $13.99 million for U.S. citizens in 2025, and $15 million in 2026). The deadline to file the federal estate tax return, or file for the automatic extension, is nine months from the date of death. This is a rigid deadline and the penalty for failure to file can be severe (generally, up to 5% of the tax due for each month the return is late up to a maximum of 25%). Thus, determining whether a federal estate tax is due is paramount, but there are other factors to consider which can affect if a tax is due and where a tax is due.

First, the personal representative should consider how the asset is “situated”. For the estates of non-citizen, non-resident decedents, the estate tax is a tax on the transfer of U.S.-situated property. This may include tangible and intangible assets owned at the decedent’s date of death. For example, real estate, tangible personal property, and stock of corporations organized in or under U.S. law.

Second, does the U.S. have a tax treaty with the decedent’s country of residence, and if so, what kind of treaty is it? Estate tax treaties will often provide favorable treatment to non-U.S. citizens. Generally, estate tax treaties are either domicile treaties or situs treaties. A situs treaty usually imposes the authority to impose an estate tax on the country in which the asset is located. Domicile treaties focus on the decedent’s domicile at the date of death to determine which country’s estate tax applies. In addition, treaties can provide carve outs and exceptions for certain assets in determining which country’s estate tax applies.

If you have any questions or if you would like to speak with an attorney about the content of this article, please contact Ray Boone at rboone@shuffieldlowman.com.