PRACTICE AREAS
International Trust & Estate Planning Checklist
For internationally mobile families reviewing their estate plans, trusts, and wealth structures across borders
A document can be legally valid in one country and still produce poor tax results in another. Estate plans, foreign trusts, and marital agreements built for one legal system often need review — and sometimes restructuring — when a family member moves, changes citizenship, gains a foreign beneficiary, or brings assets into a new tax system. The best time to do this review is before the life event occurs. The second-best time is now.
This checklist is organized around the key questions that arise in a cross-border estate planning review. It does not replace a comprehensive analysis — every family’s situation is different — but it identifies the issues that arise most frequently and carry the greatest consequences if left unaddressed.
Who should use this?
This checklist is for internationally mobile individuals and families reviewing their estate plans, foreign trusts, and wealth transfer structures for cross-border tax efficiency and compliance. Use it when a family member moves countries, a life event occurs across borders, or an existing plan has not been reviewed since the family’s geography changed.
Section 1
Estate Plan Review — Does It Still Work?
The first question is whether the existing estate plan — will, trust, powers of attorney, beneficiary designations — accounts for the family’s current geography, citizenship, and cross-border asset structure.
- Confirm that your will is valid and effective in the jurisdiction where you now reside — a will executed in another country may need to be re-executed or supplemented locally.
- Confirm that your estate plan accounts for U.S. estate tax on worldwide assets if you are — or have become — a U.S. person.
U.S. persons are subject to estate tax on worldwide assets above the federal exemption (currently $13.99 million in 2026, subject to change after 2025). This is a fundamentally different exposure than most foreign estate tax regimes, which are property-by-property or jurisdiction-by-jurisdiction.
- Review whether any trusts, foundations, or other structures in the plan are U.S. domestic or foreign for U.S. tax purposes — and confirm the intended classification is preserved.
- Confirm that beneficiary designations on retirement accounts, life insurance, and other non-probate assets are consistent with the estate plan and reflect current family circumstances.
- Review powers of attorney and healthcare directives — documents executed in one country may not be recognized in another, and new documents valid in the current jurisdiction may be needed.
- If the estate plan was drafted more than three years ago or before a significant life event (move, marriage, divorce, birth of a child, change of citizenship), schedule a comprehensive review.
Section 2
Foreign Trusts — Classification and Compliance
Foreign trusts with U.S. connections are subject to U.S. tax classification rules that operate independently of how the trust is treated in its home jurisdiction. Classification as domestic or foreign — and as grantor or non-grantor — determines both the income tax treatment and the reporting obligations.
- Identify all trusts in which you serve as grantor, trustee, or beneficiary — including trusts established in foreign jurisdictions.
- Confirm whether each trust is classified as domestic or foreign for U.S. tax purposes — applying the U.S. court test and the control test, not local law characterization.
A trust is domestic only if U.S. courts can exercise primary supervision (U.S. court test) AND U.S. persons control all substantial decisions (control test). Failure of either test makes the trust foreign for U.S. purposes.
- If the trust is foreign, confirm whether it is a foreign grantor trust or a foreign non-grantor trust — the income tax treatment and reporting obligations differ fundamentally.
A foreign grantor trust is generally more favorable for U.S. grantors — income is taxed currently to the grantor, and distributions to U.S. beneficiaries are generally tax-free. Foreign non-grantor trust distributions to U.S. beneficiaries may be subject to the throwback rules and interest charges on accumulated income.
- If the trust is a foreign grantor trust, confirm that Forms 3520 and 3520-A reporting obligations are being met annually.
- If the trust is a foreign non-grantor trust, analyze the DNI, UNI, and throwback tax exposure before any planned distributions to U.S. beneficiaries are made.
- Review whether restructuring the trust — including changes to trustee, governing law, or distribution provisions — is advisable to achieve or preserve the intended U.S. tax classification.
Section 3
Trustee, Executor & Fiduciary Appointments
The citizenship and residency of a trustee can change the U.S. tax classification of a trust. This is one of the most common unintended cross-border issues in estate planning.
- Confirm the citizenship and residency of each current trustee — a non-U.S. person serving as trustee with control over substantial decisions can cause a domestic trust to be reclassified as foreign.
- Review whether any named successor trustees are non-U.S. persons — and consider amending the trust to require that any trustee be a U.S. person, with the appointment passing automatically to the next named trustee if that condition is not met.
- Confirm that any foreign trustee of a foreign trust understands their U.S. reporting obligations — the foreign trustee is responsible for filing Form 3520-A for a foreign grantor trust, and failure to file can trigger penalties for the U.S. grantor.
- Review executor, guardian, and agent appointments in wills and powers of attorney — and confirm that the citizenship and residency of named fiduciaries does not create unintended tax or administrative consequences.
- If a beneficiary named in a trust or will has recently changed citizenship or residency to a foreign country, analyze whether that change affects U.S. reporting obligations, withholding on distributions, or local tax consequences in the beneficiary’s new jurisdiction.
Section 4
Mixed-Nationality Couple
The unlimited marital deduction does not apply to transfers to a non-U.S. citizen spouse. Planning for a mixed-nationality couple requires a different framework than purely domestic U.S. estate planning.
| Step | Action | What to know |
|---|---|---|
| Citizenship | Confirm whether your spouse is a U.S. citizen. | If not, the estate and gift tax rules for transfers between spouses are materially different. |
| QDOT | Review whether assets passing to a non-citizen surviving spouse require a Qualified Domestic Trust (QDOT) to obtain a deferred estate tax marital deduction. | Without a QDOT, assets passing to a non-citizen surviving spouse at death are not eligible for the estate tax marital deduction — they are subject to U.S. estate tax at the time of the first spouse’s death, regardless of the surviving spouse’s needs. |
| Lifetime gifts | Review lifetime gifting to a non-citizen spouse. | The annual exclusion for gifts to a non-citizen spouse (currently $185,000 in 2024, indexed for inflation) is different from the unlimited marital deduction available between U.S. citizen spouses. |
| Marital regime | If the couple has a foreign marital property regime, prenuptial agreement, or community property arrangement, analyze how that arrangement is treated under U.S. gift and estate tax law. | Any transfers under the arrangement could be treated as taxable gifts. |
| Treaty | Coordinate the U.S. estate plan with any applicable foreign estate tax treaty. | Several U.S. treaties provide a larger estate tax exemption or marital deduction for citizens or residents of the treaty country. |
Section 5
Civil Law Structures — Usufructs & Forced Heirship
Civil law succession structures — usufructs, bare ownership transfers, reserved portions — may be perfectly normal in their home jurisdiction but create unexpected U.S. tax consequences when a U.S. person is involved.
- If your estate plan includes a usufruct arrangement, confirm how it is characterized for U.S. estate and gift tax purposes.
A usufruct may be treated as a retained interest under IRC §2036, which can cause the underlying assets to remain in the grantor’s U.S. taxable estate. The analysis depends on the specific terms of the arrangement and applicable state and foreign law.
- If you are moving to the United States and your estate plan includes civil law succession structures, have those structures analyzed by U.S. tax counsel before your residency begins.
- Confirm whether foreign forced heirship or reserved portion rules apply to your assets — and analyze whether your U.S. estate plan could conflict with those rules if assets are located in a jurisdiction that applies them.
Some countries — including France, Spain, and most of Latin America — impose mandatory inheritance rights for certain family members that cannot be overridden by will or trust. These rules may apply to assets located in those countries even if the decedent was a U.S. resident.
- If you have family members in a forced heirship jurisdiction who are beneficiaries of a U.S. trust, analyze whether the trust structure is likely to be respected in that jurisdiction — and plan accordingly.
Section 6
Life Events — When to Trigger a Review
Cross-border estate plans are not static documents. Major life events are the most reliable trigger for a review — and the review should happen before the event where possible.
- A planned or recent move to or from the United States — review the entire structure before residency begins or as soon as possible after a move.
- Marriage to a non-U.S. citizen or resident — review marital agreements, beneficiary designations, and estate plan for mixed-nationality couple issues.
- A family member becoming a U.S. person — if a child, grandchild, or other beneficiary has become or will become a U.S. person, analyze the reporting and tax consequences of their connection to existing trusts, foundations, or family structures.
- A foreign relative named as trustee, executor, or guardian — confirm the citizenship and residency of fiduciaries whenever there is a family change.
- Receipt of a foreign inheritance or gift — review whether the inheritance creates reporting obligations, changes the asset structure, or affects trust classification.
- A divorce involving foreign assets, foreign trusts, or a non-U.S. spouse — have the tax consequences of the proposed settlement analyzed before it is finalized.
- A major liquidity event — sale of a business, significant investment exit, or inheritance — review the tax and reporting consequences before the proceeds are deployed or the structure changes.
Questions About Your Cross-Border Estate Plan?
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