Qualified Domestic Trusts - No Silver Bullet Solution for Cross-Border Estate Planning

The Qualified Domestic Trust or QDOT has for years been an essential tool of cross-border estate planning. However, US non-citizen married couples and estate planning practitioners alike may be lulled into a false sense of security with the QDOT.

The QDOT is great as far as it goes. It grants a non-citizen spouse a privilege akin to the unlimited marital deduction under Section 2056 of the Internal Revenue Code. Without a QDOT, assets transferred from the decedent to the surviving spouse may be subject to estate tax. After December 31, 2012, a surviving spouse could find her retirement assets (and her heirs could find their inheritance) reduced by more than half (maximum tax rate: 55%). A QDOT, properly drafted and properly utilized at death, should avoid that estate tax nightmare. However, the QDOT has some noteworthy deficiencies.

Naturalization - The Other Five Year Rule

Just a reminder that there is another five year rule associated with naturalization that we often forget about: good moral character for the five years (three years for spouses of US citizens) immediately prior to filing the naturalization application. Many cross-border practitioners probably assume that high net worth Canadians always meet this requirement. Bad assumption. 

Arrests, charges, and criminal convictions of any kind and at any time in the client’s life must be noted on the naturalization application and may affect the good moral character assessment, whether or not the “bad conduct” occurred during the five year period before filing (sounds unfair, doesn’t it?). Almost any arrest or conviction merits a consultation with an immigration attorney who is highly experienced in naturalization matters.