Buying a Property in the United States Takes Planning

Updated on March 12, 2025

Many dream of buying a property by the sea in Florida or a golf course in Arizona. But what happens at the time of death?

Owning real estate in the United States requires proper succession planning to avoid unpleasant surprises, hassles and excessive costs for the estate.

The first common error is assuming that the will is the final authority and that the property will automatically pass to the beneficiaries. This is not always the case.

A will drawn up and notarized in Canada is valid in the United States. It is not necessary to make one specifically for the U.S. However, U.S. laws stipulate that on the death of the owner of a residence in the United States, the will must be probated by the American courts. Therefore, although a Québec notarial will is valid in the U.S., recognition by the U.S. courts is required so that the executor can administer the property, such as sell it, or transfer it to the heirs.

Probating the will: high costs and delays

Even though it is a simple formality, this process involves significant costs, based on a certain percentage of the value of the estate or an hourly rate. In addition, the time needed to obtain probate can be quite long, ranging from six to twelve months.

If the will is not in English, it will also have to be translated and, generally, recognition from the Chambre des notaires and the American consulate will have to be obtained, which will lead to further delays and additional costs.

How can I avoid probate?

There are, however, legal instruments or ways of holding a residence in the U.S. that make it possible to avoid probate of a will in that country. This makes it easier to transfer property to the estate.

Tenancy by the entirety and Joint Tenancy With a Right of Survivorship

In inheritance law, property held by married spouses (Tenancy by the Entirety) or held jointly with a right of survivorship (Joint Tenancy With a Right of Survivorship) allows a couple, for example, to share a property with the same equal right to retain or dispose of the property. Simply put, the surviving spouse automatically inherits the property without having to go through the probate process.

Lady Bird Deed and Enhanced Life Estate Deed

A Lady Bird Deed and Enhanced Life Estate Deed facilitate the transfer of the deceased’s property to the heirs while ensuring that the use, control and ownership of the property are maintained during the deceased’s lifetime. However, the Deed must be properly drafted to ensure that the owner retains beneficial ownership and not a mere right to use the property.

Revocable trust (Living Trust)

Lastly, setting up a revocable trust (Living Trust) to transfer ownership also allows beneficiaries to avoid the inconvenience of probate proceedings. The trust deed must be carefully drafted. Otherwise, the trust could be subject every twenty-one years. to the 21-year deemed disposition rule. If so, it could be deemed to have sold and reacquired the property after that time. The accrued gains would then be taxed, even if the property is not sold. This type of trust may also be required to file an annual information return with the Canadian tax authorities.

Better safe than sorry

In all cases, it is important to ensure that the will provisions do not conflict with the legal status chosen to ensure the transfer of property.

Anyone wishing to purchase property in the United States would be well advised to plan such an acquisition carefully in order to facilitate the transfer of title to the heirs, and at a lower cost.