[DRAFT] Int'l Intestate Property

[Separatist Peoples]

International Intestate Property
Regulation | Legal Reform

Believing that the rules that govern inheritance and property disposition upon death shed light upon how a culture defines family,

Seeking to preserve those cultural points,

Concerned that, in an increasingly globalized society, there may be a conflict of laws regarding the proper disposition of various assets absent a testamentary instrument, and

Seeking to reconcile those differences in the least invasive manner possible,

The General Assembly enacts the following:

1. “Decedent” means an individual who entered the nation lawfully before dying, who was neither domiciled in, nor a citizen of, that nation at death, and for whom no testamentary record for disposition of property is available.
   
   
2. “Home nation” means the nation in which the decedent is domiciled.
   
   
3. “Host nation” means the nation in which the decedents property is located.
   
   
4. “Real property” means immovable property, including land, structures, and all improvements and fixtures.
   
   
5. The host state will surrender any of the decedents’ property, excepting real property, under their jurisdiction to the decedent’s representative in the home state in a reasonable amount of time to the authorized representative of the decedent’s estate or trust, subject to the laws of the home nation.
   
   
6. Member states will not require the authorized representative be physically present to accept the surrender unless the nature or value of the property strictly necessitates such measures, in keeping with concerns for safety, confidentiality, and transparency.
   
   
7. Member states may refuse to surrender the property if:
   
   
   1. The property is subject to an ongoing, open criminal investigation, provided it is returned after the investigation terminates, or
      
      
   2. The property is contraband or involved in the commission of a criminal act in the host nation’s jurisdiction.
8. A decedent’s title to real property in the host nation is subject to the law of the host nation.
   
   
9. Notwithstanding section 8, the authorized representative of the decedent’s estate, as defined by the decedent’s home nation’s law, may elect to liquidate the property pursuant to the laws of the host nation. Upon such election, the liquid proceeds of the transfer will be immediately subject to the law of the home nation.
   
   
10. Member states may levy an estate tax for the transfer of property in their jurisdiction, except those in section 9.
    
    
    1. Estate taxes on property held in the host state must be consistent with similar estate taxes on similarly situated residents of the host nation, but in no case may exceed the amount taken by the home nation.
       
       
    2. Member states may place the burden of proof of applicable taxation rates on the authorized representative of the decedent’s estate, and may waive the tax limits in subsection a if, after a reasonable period of time, the decedent’s estate did not meet that burden.
11. Member states may place reasonable requirements of identification and proof of authority, provided it is consistent with the goals of facilitating accurate and efficient disposition of property.
    
    
12. Member states may allow property unclaimed by the decedent’s representatives to escheat to the state if, after a reasonable period, but in no case less than one year, and following reasonable attempts to contact the decedent’s representatives or next of kin, the property remains unclaimed.

[Dirty Americans]

I'm trying to understand the necessity for this resolution. It doesn't in and of itself regulate or make regular Intestate Property laws or even require such laws in all member states. While the notion of cross border enforcement is noteworthy it seems to indicate that anyone with a will and testament who dies out of country is flat out of luck because this only regulates intestate property not property covered under a proper last will and testament.

It also has a problem which I will call "foreigner favor" that could, in theory, give more rights to a foreigner than a citizen. You mean it's OK to procrastinate transfer to a citizen but not to a foreign national?

P.S. You know probably three quarters of the people here have no clue what "Intestate" means. (Hint for the 75%, it's not a misspelling there is no "r" there by design.) This is a clear lemming proposal and you should be ashamed for writing one.

[Separatist Peoples]

I'm trying to understand the necessity for this resolution. It doesn't in and of itself regulate or make regular Intestate Property laws or even require such laws in all member states. While the notion of cross border enforcement is noteworthy it seems to indicate that anyone with a will and testament who dies out of country is flat out of luck because this only regulates intestate property not property covered under a proper last will and testament.

It also has a problem which I will call "foreigner favor" that could, in theory, give more rights to a foreigner than a citizen. You mean it's OK to procrastinate transfer to a citizen but not to a foreign national?

P.S. You know probably three quarters of the people here have no clue what "Intestate" means. (Hint for the 75%, it's not a misspelling there is no "r" there by design.) This is a clear lemming proposal and you should be ashamed for writing one.

OOC: you read it wrong, because people who die with no will and property abroad aren't shit outta luck under this. It creates a default solution to what otherwise is a difficult choice of law question. It resolves that question in the most logical way possible. That it gives more rights to foreigners is simply a response to inevitable attempts to screw them out of their property. Members are welcome to give those rights, or greater, to their own citizens, but giving any rights to foreigners in this situation automatically favors them over individuals in states with no rights on the subject.

I don't see how it's a lemming proposal. I anticipate that less than 25% will have any idea what this is about. I don't care. Nor do I care about your personal judgment regarding my unknowable, subjective motives.

[Kenmoria]

“Support, there’s nothing I can see that appears overly objectionable in the first read-through. I do however wonder about circumstances where the host and home nation are in a large diplomatic conflict, which could make transportation of goods very difficult.”

[Separatist Peoples]

bump

[Old Hope]

What about inheritance tax?

[Separatist Peoples]

What about inheritance tax?

"Left unregulated. Deliberately."

[Falcania]

You spelled "interstate" wrong

[Imperium Anglorum]

I hope this (edit: the above post) isn't serious

[Desmosthenes and Burke]

The host state will surrender any of the decedents’ property, excepting real property, under their jurisdiction to the decedent’s home state in a reasonable amount of time to the authorized representative of the decedent’s estate or trust, subject to the laws of the home nation.

Ambassador Bell, we are mildly confused by this wording. As it is, it seems as if the proposal would have us turn property over to the home state and the representative of the recently deceased's estate or trust. Which one is it, as we cannot a rem to both concurrently. Perhaps the insertion of an "or" after the word "time" would be appropriate?

Estate taxes on property held in the host state must be consistent with similar estate taxes on similarly situated residents of the host nation, but in no case may exceed the amount taken by the home nation.

We personally have no problem with this provision as we do not levy an estate tax and this would thus seem to operate to our citizens' benefit if they own property abroad and die intestate and grants no additional rights to aliens. However, we believe an argument could be made, that would be well grounded, that this is unduly disrespectful towards the laws of the state where the property is located, and in which the decedent chose to own property. It seems to us that by purchasing property in another nation, it is not unfair to say that our citizens accepted the legal framework of property ownership in that state, including those governing its inheritance.

“Decedent” means an individual who entered the nation lawfully before dying, who was neither domiciled in, nor a citizen of, that nation at death, and for whom no testamentary record for disposition of property is available.

We saved this for last, as we would just like to point out that this proposal might actually make it legally beneficial to die intestate, as this definition renders all the protections provided inapplicable to those who write a testament. Considering the tax benefits that would accrue to our citizens if they died intestate versus testate within the framework of this resolution, we could foresee people choosing to do so to avail themselves of the protections available that are triggered by the intestate state. Is there any reason this proposal could not be expanded without any major modification to offer protections regardless of testamentary status?

Finally, a semantic note. The proposals definitions are for "home nation" and "host nation", but the active clauses consistently use "state" in place of "nation". (OOC: Personal preference would be to standardize all references to "state" as that word unambiguously refers to a political entity).

Regardless, we have no objection to the principle of this proposal.

[Elyreia]

I hope this (edit: the above post) isn't serious

Probably a misunderstanding, due to this legislating interstate intestates. Elyreia will support this legislation once the aforementioned issues have been ironed out (whether through better explanation outside the proposal to allay fears, or modifications to the draft).

[Wallenburg]

I would suggest wrapping clauses 1-4 in a single, more traditionally formatted "defines" clause.

[Separatist Peoples]

Bump

[Separatist Peoples]

We personally have no problem with this provision as we do not levy an estate tax and this would thus seem to operate to our citizens' benefit if they own property abroad and die intestate and grants no additional rights to aliens. However, we believe an argument could be made, that would be well grounded, that this is unduly disrespectful towards the laws of the state where the property is located, and in which the decedent chose to own property. It seems to us that by purchasing property in another nation, it is not unfair to say that our citizens accepted the legal framework of property ownership in that state, including those governing its inheritance.

"I must disagree. If an individual dies intestate abroad, it is not clear whether they intended their personal property to be subject to the host state in such a manner, and it is less unfair to use the home state's amount for this. This does not, of course, apply to real property, which is entirely host-state governed. However, I can make exemptions for investments and liquid assets held by institutions."

We saved this for last, as we would just like to point out that this proposal might actually make it legally beneficial to die intestate, as this definition renders all the protections provided inapplicable to those who write a testament. Considering the tax benefits that would accrue to our citizens if they died intestate versus testate within the framework of this resolution, we could foresee people choosing to do so to avail themselves of the protections available that are triggered by the intestate state. Is there any reason this proposal could not be expanded without any major modification to offer protections regardless of testamentary status?

"Given that intestate property must still pass through probate, and this is mostly a jurisdictional question, I am not sure I agree that it would be more beneficial for property to pass intestate abroad. However, I am open to further suggestions of clarity."

[Desmosthenes and Burke]

"Given that intestate property must still pass through probate, and this is mostly a jurisdictional question, I am not sure I agree that it would be more beneficial for property to pass intestate abroad. However, I am open to further suggestions of clarity."

Let us posit a scenario, Ambassador. Ms. Wendy Oldebagge and Mr. Larry Butz, citizens of the Burkean state and regularly domiciled therein in the city of Laetitia happen to die on the same day. As it turns out both of them had significant assets in a generic tropical State that depends on fleecing foreigners as its economic engine. For simplicity, let us call this state Siam. Ms. Oldebagge and Mr. Butz both own vacation villas in Siam that are of significant value, at roughly twice the expected lifetime earnings of the average local worker. Both villas also contain significant works of art, antiques, and other moveable personal property with an aggregate value similar to that of the real property itself. Both regularly vacation in Siam or allow family members to use the property, but neither is present for sufficient periods of time to establish it as their domicile as opposed to Laetitia.

For the sake of comparison let us posit that Ms. Oldebagge, being generally cantankerous and happy with the Burkean default rules of inheritance (50% + real property to the spouse(s) or eldest child, remainder split in equal shares amongst all other children). Mr. Butz prefers to be more modern and has left a testament to divide his property in fully equal shares.

Scenario 1: Both die while at home in Laetitia. This resolution is arguably inapplicable since clause 1's definition of decedent could be read to require Ms. Oldebagge and Mr. Butz to be present in Siam at the time of their death to qualify as a "decedent" for the purposes of the resolution. Siam declares since they are not currently present, they have not "entered" Siam and therefore are not subject to the limitations in this proposal. It immediately levies a 50% inheritance tax on both estates before proceeding to honour Mr. Butz testament and graciously rendering the remainder of Ms. Oldebagge's estate to her children divided according to the laws of Siam.

Scenario 2: Ms. Oldebagge dies while visiting Siam. The Burkean inheritance laws plainly dictate that her eldest child, Mr. Wright Oldebagge is the due representative of the estate. According to the provisions of article 5, Siam must surrender the extremely valuable property within the vacation home to Wright Oldebagge. Subject to article 10(b) Mr. Wright Oldebagge is able to produce a government missal stating that the estate tax taken by the Burkean government is 0%. Therefore, according to 10(a) Siam may not take any estate tax on the personal property. Being also uncaring as to the local peasants, who really should have thought about having food before deciding to become peasants, he elects to sell the villa under the provisions of article 9, preventing Siam from realizing any estate taxes on the value of the villa as well. Pleased with himself, Mr. Wright Oldebagge returns to Laetitia having avoided paying any estate taxes to Siam, and duly distributes the proceeds according to Burkean law (which he would have had to do in any instance). He uses a portion of his proceeds to buy a newer villa on the latest posh island in Siam, just to be contrary.

Scenario 3: Mr. Butz dies in Siam. Because Mr. Butz has a testamentary record for the distribution of his property, he is not a decedent for the purposes of this resolution. Siam declares the resolution's protections inapplicable and proceeds to extract a 50% estate tax on all of Mr. Butz property in Siam before graciously agreeing to accept his testament as valid and distributing the remainder according to its provisions.

We do not find it impossible that an astute person or a sufficiently scrupulous member of the legal profession, would notice that that scenario 2, despite the slight inconvenience of having the extra step of establishing who the representative is, results in significant savings to the estate and maximizes the amount received by the heirs, whose identity was already well known. They could, conceivably, even enter into a contract amongst themselves on how they wish to divide the estate amongst themselves after their honoured parent has crossed the river Styx, which is not a testament as their honoured parent is not a party to it.

In fact, we believe that we are just about evil enough to cancel our last testament and buy significant holdings in a Socialist state just for the amusement factor.

[Separatist Peoples]

"I should note that delivery to a representative is merely for the purposes of transfer into the proper jurisdiction and not a fee simple disposition.

"I'm not sure in your example, ambassador, that either person can be reasonably said to be anything bud domiciled in Siam. They own villas where they spend a notable amount of time. However, your point is taken. If nothing else, I will commit to remove the taxation clause"

[The Yellow Monkey]

*Erupts from grave and dusts self off*

I suppose some international regulation of the passing of property at death may be valid but doesn't this skip some fundamental steps along the way? After all, the settlement of a dead homie's "property" sort of presupposes a system of private ownership and the passing of privately owned property by inheritance, which might not exist in many nations. If we are to go here, wouldn't there need to be an antecedent law declaring a right to private property in the first place? If not, why couldn't a member nation simply declare that, upon death, all effects of a person within the state revert to the state by operation of law? Then the dead homie has no "property" at all.

Perhaps member nations can do so, and perhaps they will.

Such questioning of the fundamental premises aside, here are some (hopefully helpful) thoughts on the present draft.

The host state will surrender any of the decedents’ property, excepting real property, under their jurisdiction to the decedent’s representative in the home state in a reasonable amount of time to the authorized representative of the decedent’s estate or trust, subject to the laws of the home nation.

There seems to be some unnecessary repetition that I've struck out for you. Alternatively, you could strike out the earlier reference to "the decedent's representative in the home state" or find a way to combine them. But right now requiring surrender "to the decedent’s representative in the home state" and "to the authorized representative of the decedent’s estate or trust" is at best repetitive (and possibly self-contradictory if "the decedent's representative" and "the authorized representative of the decedent's estate or trust" are different people/organizations).

Damn the expense though. If you are going to require Member Nations to surrender property at least include language permitting the costs associated with the "surrender" to be taken from the property, or to require pre-payment of those costs by the decedent's representatives. If we're talking about a state obligation to deliver property to a private individual it hardly seems fair for the costs of that to be paid from the public dole, don't you agree?

Member states may refuse to surrender the property if:

1. The property is subject to an ongoing, open criminal investigation, provided it is returned after the investigation terminates, or
   
   
2. The property is contraband or involved in the commission of a criminal act in the host nation’s jurisdiction.

What if the property is subject to taxation in the member nation, such as the effects of a business, a fancy-enough car, or any other effects that may be subject to deferred taxation? Can the member nation retain such property until the tax bill is settled? If not, then why the hell not?

Notwithstanding section 8, the authorized representative of the decedent’s estate, as defined by the decedent’s home nation’s law, may elect to liquidate the property pursuant to the laws of the host nation. Upon such election, the liquid proceeds of the transfer will be immediately subject to the law of the home nation.

Can we delay subjecting the proceeds to the law of the home nation long enough to collect any local tax associated with the liquidation? That seems only fair, as the ability to liquidate property "pursuant to the laws of the host nation" will probably benefit from the host nation's sales infrastructure and tax schemes.

You do not expect to sell property in London for the rate commanded in London and then squirrel the proceeds away to Tahiti without paying the local costs and tax associated with the sale.

Member states may levy an estate tax for the transfer of property in their jurisdiction, except those in section 9.

Can the tax be applied before the "surrender" or only if the decedent's estate or representative or trust or whatever elects to transfer the property within the "host state?"

Estate taxes on property held in the host state must be consistent with similar estate taxes on similarly situated residents of the host nation, but in no case may exceed the amount taken by the home nation.

I do not understand the merits of this at all in terms of taxation policy. Why should my domestic taxation on property owned within my nation be restrained by the backwards tax policies of The Magical Land of No Taxes and Free Government Services? Just because one of their citizens held the property in my nation and then kicked the bucket? What principle underlies such a bizarre outcome?

Everything before the comma seems very reasonable. I would strike everything after the comma.

*snip*

One more thing for now. Generally, how is a member nation supposed to determine who the representative is? Can the host nation decide that for themselves, or even be that figure as they would do in an intestate probate case.

[Bananaistan]

"We would echo the Burkean delegation's concerns about the taxation issue and look forward to seeing it removed. Although I note that Bananamen inheritance tax applies to the beneficiary of estates rather than the estate itself. The clause in question would be inapplicable to Bananamen estates.

"Regarding section 5, if we are obliged to go around collecting the personal effects of some foreigner, we should be able to levy an appropriate fee for doing so. We would much prefer if member states were instead obliged to facilitate the removal of such property while the deceased's estate remains responsible for organising same, similarly with section 9.

"There could be could be a useful opportunity here that member states should be obliged to maintain a government office to facilitate information sharing in the probate process.

"Is there a particular reason why the proposal is limited only to intestacy and only someone present in a member nation when they die? It could well be appropriate to expand the proposal to deal with all international probate including intestacy scenarios where the deceased is not present in a member state at the time of death but owns some property, real or otherwise, in the host nation.

"Also, to make clear that you're not trying to legislate on non-members, sections 2 and 3 could be edited to refer to "member states" (which is used elsewhere in the text) rather than just "the nation" and section 5 refers to host state while host nation is the defined term."