Legal Question in Real Estate Law in California

Re: State of residency while working overseas

You would undoubtedly get more and better answers if you asked your question under a wills and estates heading, rather than real estate. However, to perhaps save you a little time and trouble, let me (a business and real estate lawyer) take a shot at answering--

First, I think a will is entitled to interpretation under the laws of the jurisdiction in which it was duly executed, without regard to your state of residence. For example, California recognizes holographic (handwritten and unwitnessed) wills. Many states do not. However, states that do not will give due faith and credit to California holographic wills if executed by the decedent in California although a resident of another state at the time.

My guess is that the Republic of South Africa has a legal system based upon English common law, and that a will executed there would be interpreted elsewhere in the English-law world, including the United States, under the laws of the RSA.

If you would prefer to make a will that would be construed under more familiar law, i.e., that of one of the U.S. states, you should execute your will while physically present in a state of your choice, preferably at the office of an attorney who specializes in wills, trusts and estates.

The state of residency issue is, therefore, perhaps not as important as you imagine. It's quite possible you are not a resident of any U.S. state for some legal purposes. For others, you could make a choice based upon YOUR opinion and it would survive challenge.

You might consider deliberately making a will that would be construed under the laws of South Africa. Get competent local advice. If made while you were there it would be entitled to recognition in U.S. courts and jurisdictions.

Further, since you are legitimately offshore, you should get advice on whether establishing an offshore living or testamentary trust would result in estate tax savings.

The bottom line is that you have issues and opportunities that go well beyond figuring out what state you are a "resident" of. A more sophisticated approach is to consider yourself a resident of the world, and pick and choose the legal system that best serves your overall interests for tax, probate and faithful administration purposes. RSA may be a decent choice, but I make no recommendation.

Your choice of a jurisdiction for your will might also be influenced by where your proposed executor lives and where your heirs are.

Finally, don't rely solely upon my advice; get a wills and trusts lawyer to chime in first.