7 FAM 200
DEATHS AND ESTATES OF U.S. nationals ABROAD
7 FAM 210
INTRODUCTION
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS/L)
7 FAM 211 Summary
(CT:CON-407; 06-29-2012)
a. Sympathy, Compassion, Composure, Professionalism:
Providing assistance to the relatives of U.S. citizens who die abroad is one of
the most difficult and important services performed by consular officers,
requiring sensitivity, tact, and a high degree of competence, particularly in
those cases where death occurs under unusual circumstances. Officers must deal
sympathetically and effectively with the decedents surviving spouse, next of
kin (NOK) and other family members or friends who are experiencing emotional
stress, and who are often unprepared, financially and otherwise, for the
important decisions that must be made in an atmosphere of urgency. The
consular officers actions are governed by the desires of the surviving spouse,
closest relative or legal representative, who is usually in the United States,
far from the scene of death, and unfamiliar with foreign laws concerning death
and the disposition of remains. All arrangements relating to the death of a
U.S. citizen overseas must be handled with care, empathy, and understanding.
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See: 7 FAM 200 Appendix D
Identifying Next of Kin or Legal Representative.
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b. Responsibility of the Host Country: Consular
officers should be familiar with the provisions of consular treaties in force,
pertaining to estates or between the United States and the host country.
Treaty provisions may specify the time period in which notification of the
death of a national must be made by the host country to the consular officer
and procedures to be followed regarding disposition of the personal estate of a
national. (See 7
FAM 212 Authorities). The texts of the Vienna Convention on Consular
Relations (VCCR) and bilateral consular conventions are also available on the
CA Internet page and the CA/OCS Intranet treaties feature. Article 5(g) of the
VCCR provides that consular functions include safeguarding the interests of
deceased U.S. citizens in accordance with the laws of the host country. In
addition, Article 37 of the VCCR requires notification by host country
officials without delay in instances of the death of a foreign national. For
a list of parties to the Convention, (see Treaties in Force on the Department
of State Internet page.)
c. Critical Contact Information: Consular officers
must become familiar with their responsibilities and the procedures to be
followed. Each post should maintain an information sheet listing the contacts
and telephone numbers of host country offices or agencies which must be dealt
with when deaths occur. Advance preparation will assist greatly in carrying
out the wishes of the NOK and significantly reduce the potential for criticism.
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Contacts should include, but not be limited to:
Police
Hotel managers
Local morticians and funeral directors
Local coroners and medical examiners
Local air carriers, including customer service, cargo and
special care experts
U.S. Customs Service representatives
U.S. Customs and Public Health Service representatives at U.S.
ports of entry (POE)
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d. Critical Host Country Law and Practice: It is also
vital that you be generally familiar with the laws and practices of the host
country regarding disposition of remains, autopsies, issuance of death
certificates, including presumptive death findings, probate and other matters
related to estates, and bereavement and mourning customs. (See 7 FAM 200
Appendix B). You should have contacts that will be able to answer questions
about these issues. It is recommended that you make this information available
on your post web page.
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For example:
U.S. Embassy Tokyo Death of A Loved One
U.S. Embassy Mexico City Death of a U.S. Citizen
U.S. Embassy Singapore Death of a U.S. Citizen
U.S. Embassy Seoul Death of a U.S. Citizen
U.S. Embassy San Jose Death of a U.S. Citizen
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e. Estate Function of Consuls: For over 200 years
consular officers have been empowered to dispose of the personal estates of
citizens who die abroad. As early as 1792, laws were enacted by Congress
giving consular officers certain powers and authority with respect to estates
of deceased citizens. While most estates of U.S. citizens who die while
visiting abroad involve a small number of personal items, U.S. citizens working
and residing abroad may have much more complicated estates and a surprising
number have no wills and no legal representation. CA/OCS/ACS, with legal
guidance from CA/OCS/L and L/CA, stand ready to assist you in this often
complex work.
7 FAM 212 AUTHORITY
(CT:CON-290; 04-01-2009)
a. Treaties: Article 5(g) of the VCCR provides that
consular functions include safeguarding the interests of deceased U.S. citizens
in accordance with the laws of the host country. In addition, Article 37 of
the VCCR requires notification without delay by host country officials in
instances of the death of a foreign national. Bilateral consular conventions
contain similar provisions. (See 7 FAM 211 b).
b. Statutes: The statutory authority for diplomatic or
consular officers to act in the event of the death of a U.S. citizen abroad is
contained in:
(1) 22 U.S.C. 2715b Notification of Next of Kin;
Reports of Death;
(2) 22 U.S.C. 2715 Procedures Regarding Major
Disasters and Incidents Abroad Affecting United States Citizens;
(3) 22 U.S.C. 2715c Conservation and Disposition of
Estates;
(4) 22 U.S.C. 4196 Notification of Death of Decedent;
Transmission of Inventory of Effects;
(5) 22 U.S.C. 4197 Following testamentary directions;
assistance to testamentary appointee;
(6) 22 U.S.C. 2729 Report to Congress Death by
Non-Natural Causes;
(7) 46 U.S.C. 10702 Duties of Masters;
(8) 46 U.S.C. 10703 Procedures of Masters;
(9) 46 U.S.C. 10704 Duties of Consular Officers; and
(10) 46 U.S.C. 11301 Logbook and Entry Requirements
c. Regulations: Consular regulations regarding deaths
and estates were revised in 2006-2007. The Final Rule was published as Public
Notice 5702, Federal Register 72, No. 39, February 28, 2007, pages 8887-8894.
The Proposed Rule was published in Federal Register, Vol. 71, No. 205, October
24, 2006, 62219-62226. In addition, federal regulations issued by the Public
Health Service and the Coast Guard also pertain to certain consular
responsibilities. 42 CFR 71.21 (Public Health Service Radio Report of Death or
Illness); 42 CFR 71.35 (Report of Death or Illness on Carrier During Stay in
Port); 42 CFR 71.55 (Dead Bodies); and 7 FAM 760 and 46
CFR 4.04-1 (Reports of Potential Vessel Casualty); 46 CFR 4.05-1 (Notice of
Marine Casualty); 46 CFR 122.202 (Notice of Marine Casualty); 46 CFR 122.220
(Records Of A Voyage Resulting In A Marine Casualty).
d. Local Law: The extent to which a consular officer
can exercise the authorities and responsibilities established by U.S. statutes
and regulations, or otherwise be of assistance, is subject to the cooperation
of the local authorities and in general the laws of the country where the U.S.
citizen died.
e. Limited Role of Consular Agents: A consular agent
does not have legal authority under United States statutes with respect to
the death of a U.S. citizen abroad. Actions taken by a consular agent must be
under the close and direct supervision of a consular officer, who retains sole
responsibility under United States law.
7 FAM 213 DEFINITIONS
(CT:CON-153; 01-11-2007)
For purposes of the Departments role in responding to the
death of U.S. citizens abroad and services involving the settlement of their
estates, the following terms and definitions apply.
7 FAM 213.1 Death Cases Abroad
(CT:CON-153; 01-11-2007)
Autopsy: An inspection and
dissection of the remains to determine the cause of death.
Certificate of death: A
document issued by local authorities to verify a persons death.
Cremation certificate: A
certificate issued by a crematorium to verify a persons cremation. It normally
contains the name of the deceased, date of death, and date of cremation.
Disposition of remains: The
method of disposition of the deceased which will include one of the following:
local interment, preparation of the remains and air shipment to a designated
area in the United States, cremation and local disposition of the ashes, or
cremation and air shipment of the ashes to a designated area in the United
States.
Disposition of remains report:
The triennial report submitted to the Department setting forth the local
requirements and costs for interment, cremation, embalming, preparation and
shipment of the remains, exhumation and bereavement/mourning customs.
Legal representative: For the
purposes of reports of death and disposition of remains, the person authorized
to act in all matters relating to the death and disposition of the remains of a
U.S. citizen who has died abroad.
Mortuary Certificate: A
certificate prepared by a U.S. consular officer in conjunction with the local
funeral director, attending physician or coroner attesting that a deceased
individual did not die of a communicable disease and attesting to the contents
of a coffin or urn.
Next of kin (NOK): A persons
closest relative, such as spouse, children, or parents.
Postmortem: See Autopsy.
Report of Death: Form DS-2060,
Report of the Death of an American Citizen Abroad, used to report the death of
a U.S. citizen abroad.
Waybill: A document prepared
by the carrier of a shipment of goods or freight (including shipment of
remains), containing the details of the shipment, route, and charges.
7 FAM 213.2 Definitions for the
Purpose of Settlement of Estates Abroad
(CT:CON-290; 04-01-2009)
Administration: As it relates
to an estate, the management and settlement of the estate of an intestate, or
of a testator who has no executor, performed by a duly qualified person
generally under the supervision of a court. It usually involves collecting the
decedents assets, paying the debts, and distributing the remainder of the
estate.
Administrator or Administratrix:
A person appointed by a court to administer the estate of a decedent. Such
person, if named in the decedents will, is designated as executor or executrix.
Affinity: A relationship that
one spouse has to blood relatives of the other spouse because of marriage.
Ancillary administration:
Administration of an estate in a jurisdiction where the decedent had property
but was not domiciled. It may be performed in any foreign jurisdiction where
assets are located and is usually for the purpose of collecting such assets and
paying debts there.
Beneficiary: A person having
the benefits of property of which a trustee, or executor, has legal possession
or, broadly speaking, a person who is entitled to proceeds of an estate.
Bequest: The legal term
meaning personal property left by a will.
Codicil: An addition,
supplement, or modification to a will. A codicil does not dispose of the
entire estate, and does not normally revoke in toto a prior will.
Collateral consanguinity: The
relationship that exists between persons who have common ancestors, but who do
not descend/ascend one from the other (for example, an uncle and nephew).
Consanguinity: The relationship
of persons descended from a common ancestor.
Devise: An old legal term that
is generally used to refer to real estate left to someone under the terms of a
will, or to the act of leaving such real estate. In some states devise now
applies to any kind of property left by a will, making it identical to the term
bequest.
Devisee: A person to whom
property is devised or given by a will.
Distributee: A person entitled
to share in the distribution of an estate pursuant to a statute of
distribution, rather than pursuant to a will.
Executor or Executrix: A male
or female named in the will of the decedent to administer the decedents
estate.
Fiduciary: A person holding a
position similar to that of a trustee with a duty to act in good faith for the
benefit of another person. A fiduciary relationship may exist between client
and attorney, or executor and distributee. A breach of fiduciary
responsibility may make the fiduciary liable to the beneficiaries for any
damage cause by such breach.
Heir: A person who inherits
property by will or under a statute of descent and distribution.
Intestate: Without having made
a will; also, the term an intestate means a decedent who leaves no will.
Legacy: A disposition of real
or personal property by will.
Legal representative: In its
broadest sense means someone who stands in place of, and has legal authority to
represent the interests of, another. For the purpose of the handling of
estates by consular officers the term legal representative as generally defined
in 22 CFR 72.1 (revised) is:
(1) An executor designated by will intended to operate
in the country where the death occurred or in the country where the deceased
was residing at the time of death to take possession and dispose of the
decedents personal estate;
(2) An administrator appointed by a court of law in
intestate proceedings in the country where the death occurred or in the country
where the deceased was residing at the time of death to take possession and
dispose of the decedents personal estate;
(3) The next of kin, if authorized in the country
where the death occurred or in the country where the deceased was residing at
the time of death to take possession and dispose of the decedents personal
estate; or
(4) An authorized agent of the individuals described
in paragraphs (1), (2) and (3).
Legatee: A person to whom a
legacy is given.
Letters of administration: An
official document, issued by a court, which authorizes a person to administer
the estate of a decedent: who dies intestate or makes a will without naming
any executors; when the executor named in the will is incompetent or refuses to
act; or when the executor in the will is deceased.
Letters testamentary: An
official document issued by a court authorizing the executor named in the will
to administer the estate.
Lineal consanguinity: The
relationship between persons of whom one is descended or ascended in a direct
line from the other, as between a particular person and the persons father,
grandmother, or great-grandfather.
Living Will: Advance Directive,
Durable Power of Attorney: Legal instruments that enable a person to indicate
their wishes regarding medical treatment and disposition of remains in the
event of a catastrophic condition. (See 7 FAM 358).
Mortis causa: By reason or in
contemplation of death.
Next of kin (NOK): This term
may mean either the persons most nearly related to the decedent by blood or
marriage or the persons related to the decedent by blood or marriage who are
entitled to participate in the distribution of an estate under a statute of
distribution.
Nisi: A Latin term meaning
unless and is often affixed to words such as rule, order, and decree.
It is used to indicate that a judgment will stand as valid and operative unless
action is taken to avoid it, or to procure its revocation.
Personal estate: Sometimes
used synonymously with personal property, means any tangible property of the
decedent that does not fall into the category of real estate. It includes
furniture, household furnishings, motor vehicles, clothing, luggage, and other
effects of a tangible, movable nature. It also includes convertible assets,
non-negotiable instruments, and the like. For purposes of the Departments
regulations, however, a personal estate does not include bank deposits.
Per Capita: The method of
dividing an intestate estate by which an equal share is given to each of a
number of persons, all of whom stand in equal degree to the decedent.
Distributees of the same generation share equally in the proceeds for that
generation.
Per stirpes: The method of
dividing an estate by which a group of distributees takes the share which a
deceased distributee would have been entitled to take (e.g., three children
take one-third share each of their deceased mothers share of their
grandfathers estate).
Probate: The procedure by
which a will is proven to be valid or invalid, before a competent judicial
authority, such as a probate court. The term is more broadly used to include
all matters and proceedings pertaining to the administration of an estate.
Self-proving will: A will that
eliminates some of the formalities of proof by execution in compliance with the
applicable statute. A will may be made self-proving by an affidavit of
attesting witnesses in the form prescribed by statute. (See 7 FAM 843).
Statute of descent and distribution:
A law prescribing the manner in which an estate is to be distributed among the
heirs or relatives of an intestate person. The statute for a particular state
in the United States may be found under the section Descent and Distribution
for each state law summary contained in the United States Law Digest published
by Martindale Hubbell (Martindale Hubbell Law Digest - United States Law
Digest, multiple volumes). (See the Martindale Hubbell International Law
Digest). These are accessible on-line through LexisNexis.
Succession: The devolution of
title to property under the law of descent and distribution, by will or
inheritance (as opposed to by sale).
Testate: Leaving a valid will.
Testator: A male decedent who
dies testate.
Testatrix: A female decedent
who dies testate.
Will: A written instrument by
which a person makes a disposition of his or her property, to take effect after
death.
7 FAM 214 TREATIES AND OTHER
INTERNATIONAL AGREEMENTS ON DEATHS AND ESTATES NOT IN FORCE FOR THE UNITED
sTATES
(CT:CON-433; 01-18-2013)
a. Convention Providing a Uniform Law on the Form of an
International Will of October 26, 1973: As 7 FAM 843
explains briefly, U.S. consular officers cannot execute the certificate under
the Uniform International Wills Act because the United States has not, to date,
become a party to the Convention Providing a Uniform Law on the Form of an
International Will of October 26, 1973.
(1) The President transmitted the Convention to the
Senate on July 2, 1986;
(2) The Senate gave advice and consent to ratification
on August 2, 1991;
(3) The President signed the instrument of
ratification on December 2, 1991;
(4) The United States has not deposited its instrument
of ratification pending enactment of implementing legislation, the
International Wills Act, required before the United States can take further
action to ratify the Convention. That draft legislation has not been
introduced. CA/OCS/L ( ASK-OCS-L@state.gov)
continues to receive inquiries about this convention from private citizens,
private practitioners and other interested parties;
(5) When the treaty enters into force for the United
States, consular officers abroad will be required to execute an
"International Will Certificate." This is an acknowledgement that
the document was executed by the testator and the witnesses in the manner
prescribed by the International Wills Act. The pre-printed certificate also
sets forth the requirements of the Act. This is essentially a notarial
function; and
(6) When the Convention comes into force, CA will have
specific responsibilities under this Convention regarding maintenance of a
registry of international wills executed before U.S. diplomatic and consular
officers abroad, which we believe will be assigned to CA/OCS/L ( ASK-OCS-L@state.gov). CA Assistant Secretary approved the concept
of CA/OCS assuming these responsibilities on July 27, 1984.
b. Hague Conventions on Trusts, Estates, and Protection
of Incapacitated Adults: The United States is not a party to these treaties,
but participated in their negotiation. At present, CA/OCS/L ( ASK-OCS-L@state.gov), L/CA and L/PIL are
reviewing the conventions to determine their benefits to the United States and
whether we should take next steps towards U.S. accession.
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See:(NOT IN FORCE FOR THE UNITED STATES
AT THIS TIME)
Hague Convention on the Conflicts of Law Relating to the
Form of Testamentary Dispositions (1961)
Hague Convention Concerning International Administration
of Estates of Deceased Persons
Hague Convention on the Law Applicable to Succession to
the Estates of Deceased Persons (1989)
Hague Convention on the Law Applicable to Trusts and Their
Recognition (1985)
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7 FAM 215 through 219 UnassigneD