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When a Decedent in a New York City Estate is a Foreign National

A Notice to Consul General is filed in a New York probate estate matter when the decedent was a subject of another country, was not a permanent legal U.S. resident or domiciled in the United States and the persons entitled to distribution of the decedentā€™s assets also are not domiciled in the United States or legal residents of the United States.

Since estate matters pertaining to foreign nationals may be complex, if you are involved in such a situation, it is recommended that you seek the assistance of an experienced New York probate and estate attorney. The attorney can help prepare and file the notice to consul general and assist with other estate matters.

When to File the Notice to Consul General?

The notice to consul-general should be signed by the attorney for the estate and the attorneyā€™s signature should be notarized.Ā  The notice can be filed by the estate attorney or the personal representative of the estate with the New York Surrogateā€™s Court and served on the consul general of the country of the decedentā€™s nationality either before or right after the petition for probate has been filed with the Court.

Who Can Take Possession of a Foreign National Decedentā€™s Assets?

The consul general has the authority to take possession of the decedentā€™s property for safekeeping, subject to the approval of the Surrogateā€™s Court, in order to hold onto the property until the consul general is able to notify and locate the decedentā€™s heirs. The Surrogateā€™s Court has the authority to deny the transfer of control of the assets to the consul general if the Court determines that it is not in the best interests of the estate and the decedentā€™s heirs. However, if there is any real property involved, the Surrogateā€™s Court also has the jurisdiction to approve the transfer of ownership of the property, even if the consul general takes control of the possession of it.

Also, keep in mind that since the assets belonged to a foreign national, the decedentā€™s estate may be subject to paying FIRPTA taxes on the sale proceeds.Ā  Typically, 10% of the sales proceeds are withheld in escrow in order to pay the FIRPTA taxes. Any overpayments of FIRPTA taxes can be refunded back to the estate by making a formal written request with the IRS.Ā  An experienced New York estate attorney can assist with preparing the necessary tax paperwork and helping get back any refunds due.

New York City Estate Attorney

If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at
(212) 233-1233.