[Federal Register Volume 71, Number 205 (Tuesday, October 24, 2006)]
[Proposed Rules]
[Pages 62219-62226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17591]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 72

[Public Notice 5582]
RIN: 1400-AC24


Deaths and Estates

AGENCY: Department of State.

ACTION: Proposed rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of State is proposing to update and amend its 
regulations on deaths and estates in 22 CFR part 72. The existing 
regulations were originally issued in 1957. They needed to be redrafted 
in plain language and changed to reflect changes in State Department 
statutory authority and current practice. Sections 234 and 235 of the 
James W. Nance and Meg Donovan Foreign Relations Authorization Act, 
Fiscal Years 2000 and 2001 made some changes to consular officer and 
State Department responsibilities with respect to the deaths and 
personal estates of United States citizens and non-citizen nationals 
abroad that must be reflected in the regulations.

DATES: The State Department will accept comments on this proposed 
regulation until December 26, 2006.

ADDRESSES: You may submit comments by one of the following methods (no 
duplicates, please):
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Electronically: You may submit electronic comments to 
[email protected]. Attachments must be in Microsoft Word.
     Mail: U.S. Department of State, Bureau of Consular 
Affairs, CA/OCS/PRI, 2100 Pennsylvania Avenue (SA-29), 4th Floor, 
Washington, DC 20037.

FOR FURTHER INFORMATION CONTACT: Edward A. Betancourt, Monica Gaw or 
Michael Meszaros, Overseas Citizens Services, Department of State, 2100 
Pennsylvania Avenue, 4th Floor, Washington, DC 20037, 202-736-9110, fax 
number 202-736-9111. Hearing or speech-impaired persons may use the 
Telecommunications Devices for the Deaf (TDD) by contacting the Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Legal Authority

    Sections 234 and 235 of the James W. Nance and Meg Donovan Foreign 
Relations Authorization Act, Fiscal Years 2000 and 2001 (Pub. L. 106-
113), (hereinafter ``the Act''), as codified in 22 U.S.C. 2715b and 
2715c.

II. Introduction

    This proposed rule details the handling of deaths and estates of 
American citizens who die abroad by the U.S. State Department. 
Legislation was passed in the year 2000 amending many of the statutes 
authorizing the State Department to perform this function. Many of the 
CFR provisions are unchanged since 1957. Some need revision because of 
the legislation; others are out of date.
    This proposed rule amends the existing regulations in 22 CFR part 
72 and implements Sections 234 and 235 of the James W. Nance and Meg 
Donovan

[[Page 62220]]

Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Pub. 
L. 106-113), (hereinafter ``the Act''), as codified in 22 U.S.C. 
sections 2715(b), 2715b, and 2715c. The current part 72 will be removed 
in its entirety, and replaced with the proposed rules.

Notifications and Reports of Death

    Section 234 of the Act provides an explicit statutory mandate, 
codified as 22 U.S.C. 2715b(a), to a consular officer to endeavor to 
notify, or assist the Secretary of State in notifying, the next of kin 
or legal guardian as soon as possible when a United States citizen or 
non-citizen national dies abroad, with certain exceptions. 22 U.S.C. 
2715b(a) essentially codifies existing practices concerning consular 
reporting and notification regarding deaths of United States citizens 
or non-citizen nationals as reflected in the existing 22 CFR 72.1 
through 72.8, with some variations in the exceptions to normal 
notification procedures. 22 U.S.C. 4196, which provides for the 
consular officer to notify the legal representative and the Secretary 
of State of the death of a United States citizen or national abroad, is 
unaffected by Section 234.
    Under the amended regulations, when notifying next of kin of the 
death of a United States citizen or non-citizen national abroad, such 
notifications will be made by telephone and confirmed in writing, for 
example, through an email or fax. The State Department previously used 
a commercial telegram service to make such notifications.
    Section 234 of the Act also explicitly authorizes a consular 
officer to issue a report of death or of presumptive death in the case 
of a finding of death by the appropriate local authorities. In 
addition, it explicitly authorizes a consular officer to issue a report 
of presumptive death in the absence of a finding of death by the 
appropriate local authorities. This latter provision is intended to 
allow the consular officer to issue a report of presumptive death in 
exceptional circumstances where the evidence that the individual has 
died (e.g., he or she was listed on the passenger manifest on an 
aircraft that crashed leaving no survivors) is persuasive, but local 
authorities have not issued and are not likely to issue a finding of 
death (because, e.g., issuance of a local death certificate requires 
forensic evidence that is not available or there is no local authority 
that clearly has jurisdiction.) The Section 234 authorities to issue 
reports of death are codified at 22 U.S.C. 2715b(b).

Protection of Estates

    Section 234 of the Act further preserves and updates the authority 
of a consular officer to serve as provisional conservator of the 
portion of the personal estate of a deceased United States citizen or 
non-citizen national that is located abroad. It also preserves and 
updates the authority of a consular officer in ``exceptional 
circumstances'' to serve as the administrator of the estate. This 
authority is now codified at 22 U.S.C. 2715c. (The predecessor statute, 
22 U.S.C. 4195, was repealed by Section 234.)
    Pursuant to 22 U.S.C. 2715c, a consular officer may serve as 
provisional conservator or administrator of the personal estate of a 
United States citizen or non-citizen national only when this is 
authorized by treaty provisions, permitted by the laws and authorities 
of the foreign country where the death occurs, or the decedent is 
domiciled, or permitted by established usage in that foreign country. 
Serving as a provisional conservator or administrator with respect to 
the personal estate of a deceased United States citizen or non-citizen 
national, is, however, not authorized if the decedent has left or there 
is otherwise appointed in the foreign country where the death occurred 
or where the decedent was domiciled, a legal representative, partner in 
trade, or trustee appointed to take care of the personal estate. If 
such a legal representative, partner in trade or trustee appears at any 
time prior to the transmission of the property to the Secretary of 
State and demands the proceeds and effects held by the consular 
officer, the consular officer must deliver them after collecting any 
fees prescribed for the services performed under 22 U.S.C. 2715c. 
Consistent with previous statutory authority, 22 U.S.C. 2715c(a)(1) 
confirms that a consular officer, when serving as provisional 
conservator of an estate may (A) take possession of the personal 
effects of the decedent within the consular officer's jurisdiction, (B) 
inventory and appraise the personal effects, (C) when appropriate in 
the exercise of prudent administration, collect the debts due to the 
decedent in the officer's jurisdiction and pay from the estate 
obligations owed by the decedent, (D) sell or otherwise dispose of, as 
appropriate, in the exercise of prudent administration, all perishable 
items of property, (E) sell, after reasonable public notice and notice 
to such next of kin as can be ascertained with reasonable diligence, 
additional items of property as necessary to provide funds for the 
decedent's debts, local property taxes, funeral expenses and other 
expenses incident to the disposition of the estate; and (F) if no 
claimant has appeared within the one year period beginning on the date 
of death (or such reasonable additional period as may be required for 
final settlement of the estate), sell the residue of the personal 
estate in the same manner as United States Government-owned foreign 
excess property, after reasonable public notice and notice to such next 
of kin as can be ascertained with reasonable diligence.

Transmittal of Estates to Department of State

    Prior to enactment of the Legislative Appropriations Act of 1996 
(Pub. L. 104-53), the General Accounting Office (GAO) (now the 
Government Accountability Office) had responsibility for receiving the 
final statement of account and the personal effects of deceased United 
States citizens and non-citizen nationals that had been held by 
consular officers for over one year. Pub. L. 104-53 divested GAO of 
some of its ``operational responsibilities,'' including accepting the 
personal estates of United States citizens and non-citizen nationals 
who die abroad, and gave such responsibilities to the Executive Branch. 
Pursuant to Section 234 of the Act, the Department of State now has 
explicit responsibility for estates formerly transmitted to the GAO. 22 
U.S.C. 2715c(a)(1)(G) provides that any proceeds from sale of the 
residue of the estate shall be transmitted to the Secretary of State, 
who will have the authority to seek payment of debts to the estate and 
may take other action that is reasonably necessary for the conservation 
of the estate. 22 U.S.C. 2715c(b)(1) conveys title of the residue of 
the estate to the United States if no legal claimant appears within 
five fiscal years beginning on October 1 after the date on which a 
consular officer took possession of the personal estate, and gives the 
Secretary of State the authority to dispose of the estate as surplus 
United States Government-owned property or such other means as may be 
appropriate in light of the nature and value of the property involved. 
The net cash estate after disposition goes to the miscellaneous 
receipts account of the Treasury.

Conveyance of Real Property to United States Government

    Another new statutory authority conferred by Section 234 of the 
Act, and codified in 22 U.S.C. 2715c(a)(1)(H) and 22 U.S.C. 
2715c(b)(2), addresses the situation where real property belonging

[[Page 62221]]

to a deceased United States citizen or non-citizen national lays 
dormant for lack of a claimant while taxes and other assessments 
accrue, with the possibility, therefore, that ownership of the property 
will be transferred to a foreign government authority. In that 
situation, if local law so provides, the consular officer may provide 
for title to the property to be conveyed to the United States 
Government unless the Secretary of State declines to accept the 
conveyance. Real property conveyed to the Secretary of State may be 
treated as foreign excess property, or, if the Department of State 
wants the property for its own use, may be treated as an unconditional 
gift.

Compensation for Loss, Theft of Destruction

    Finally, Section 234 of the Act provides a new authority, codified 
in 22 U.S.C. 2715c(c), for the Secretary of State to compensate the 
estate of any United States citizen or non-citizen national who has 
died overseas for property that was lost, stolen or destroyed while in 
the custody of officers or employees of the State Department and with 
respect to which a consular officer was exercising the role of 
provisional conservator pursuant to 22 U.S.C. 2715 (relating to major 
disasters and incidents abroad affecting United States citizens) or 22 
U.S.C. 2715c(a). Any compensation provided under this provision is in 
lieu of personal liability of the State Department's officers and 
employees. State Department officers and employees may be liable to the 
State Department for any such compensation provided, however, and 
liability determinations are to be made pursuant to the State 
Department's procedures for determining accountability for United 
States Government property. The proposed regulations provide procedures 
for an estate to claim compensation by reference to Department of State 
regulations on overseas tort claims under 22 U.S.C. 2669(f).
    Existing statutory provisions, 22 U.S.C. 4197 and 22 U.S.C. 4198, 
prescribe the posting of bond by a consular officer who is appointed by 
a foreign state as an administrator, guardian or other office of trust 
for an estate and providing penalties for failure to post bond or for 
embezzlement, remain in force.

Broader Definition of ``Consular Officer''

    Section 235 of the Act amended 22 U.S.C. 2715 (Procedures regarding 
major disasters and incidents abroad affecting United States citizens) 
by, inter alia, defining ``consular officer'' for the purpose of 22 
U.S.C. 2715 and Section 234 of the Act to include any United States 
citizen employee of the Department of State who is designated by the 
Secretary of State to perform consular services pursuant to such 
regulations as the Secretary may prescribe. Accordingly, such 
designated United States citizen employees now may make notifications 
of deaths, issue reports of death and presumptive death, and act as 
provisional conservators of estates.

III. Regulatory Findings

Administrative Procedure Act

    In accordance with provisions of the Administrative Procedure Act 
governing rules promulgated by Federal agencies that affect the public 
(5 U.S.C. 533), the State Department is publishing this proposed rule 
and inviting public comment. All comments received before the close of 
business on the comment closing date indicated above will be 
considered.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act 5 U.S.C. 605(b), 
the Department of State has evaluated the effects of this proposed 
action on small entities, and has determined, and hereby certifies, 
pursuant to 5 U.S.C. 605(b), that it would not have a significant 
economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804 for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. 
This rule would not result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Pub. L. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies 
to prepare a statement, including cost-benefit and other analyses, 
before proposing any rule that may result in an annual expenditure of 
$100 million or more by State, local, or tribal governments, or by the 
private sector. This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any year. Moreover, because this 
rule will not significantly or uniquely affect small governments, 
section 203 of the UFMA, 2 U.S.C. 1533, does not require preparation of 
a small government agency plan in connection with it.

Executive Order 13132: Federalism

    A rule has federalism implications under Executive Order 13132 if 
it has substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
This regulation will not have such effects, and therefore does not have 
sufficient federalism implications to require consultations or to 
warrant the preparation of a federalism summary impact statement under 
section 6 of Executive Order 13132.

Executive Order 12866: Regulatory Review

    The Department of State does not consider this rule to be a 
``significant regulatory action'' within the scope of section 3(f)(1) 
of Executive Order 12866. Nonetheless, the State Department has 
reviewed the regulation to ensure its consistency with the regulatory 
philosophy and principles set forth in the Executive Order.

Executive Order 12988: Civil Justice Reform

    The State Department has reviewed this rule in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden. The State Department has made every reasonable effort to ensure 
compliance with the requirements in Executive Order 12988.

Paperwork Reduction Act of 1995

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 72

    Estates.
    For reasons set forth in the preamble, Title 22, Subchapter H, part 
72 of the Code of Federal Regulations is proposed to be revised to read 
as follows:

[[Page 62222]]

PART 72--DEATHS AND ESTATES

Reporting the Deaths of United States Nationals

Sec.
72.1 Definitions.
72.2 Consular responsibility.
72.3 Exceptions.
72.4 Notifications of death.
72.5 Final report of death.
72.6 Report of presumptive death.

Disposition of Remains

72.7 Consular responsibility.

Personal Estates of Deceased United States Citizens and Nationals

72.8 Regulatory responsibility of consular officer.
72.9 Responsibility if legal representative is present.
72.10 Responsibility if a will intended to operate locally exists.
72.11 Responsibility if a will intended to operate in the United 
States exists.
72.12 Bank deposits in foreign countries.
72.13 Effects to be taken into physical possession.
72.14 Nominal possession; property not normally taken into physical 
possession.
72.15 Action when possession is impractical.
72.16 Procedure for inventorying and appraising effects.
72.17 Final statement of account.
72.18 Payment of debts owed by decedent.
72.19 Consular officer ordinarily not to act as administrator of 
estate.
72.20 Prohibition against performing legal services or employing 
counsel.
72.21 Consular officer not to assume financial responsibility.
72.22 Release of personal estate to legal representative.
72.23 Affidavit of next of kin.
72.24 Conflicting claims.
72.25 Transfer of personal estate to Department of State.
72.26 Vesting of personal estate in United States.
72.27 Export of cultural property.
72.28 Claims for lost, stolen, or destroyed personal estate.
72.29 Real property overseas belonging to deceased United States 
citizen or national.
72.30 Provisions in a Will or Advanced Directive Regarding 
Disposition of Remains.

Fees

72.31 Fees for consular death and estate services.

    Authority: 22 U.S.C. 2715, 2715b, 2715c, 4196, 4197, 4198, 4199.

Reporting Deaths of United States Nationals


Sec.  72.1  Definitions.

    For purposes of this part:
    ``Consular officer'' includes any United States citizen employee of 
the Department of State who is designated by the Department of State to 
perform consular services relating to the deaths and estates abroad of 
United States nationals.
    ``Department'' means the United States Department of State.
    ``Legal representative'' means--
    (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 
decedent's 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 decedent's 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 decedent's personal 
estate; or
    (4) An authorized agent of the individuals described in paragraphs 
(b)(1), (b)(2) and (b)(3) of this section.


Sec.  72.2  Consular responsibility.

    Except as provided in Sec.  72.3, when a consular officer learns 
that a United States citizen or non-citizen national has died in the 
officer's consular district, the officer should report the death to the 
Department. The officer should also endeavor to notify, or assist the 
Secretary of State in notifying, the next of kin (or legal guardian) 
and the legal representative, if different from the next of kin, as 
soon as possible.


Sec.  72.3  Exceptions.

    If a consular officer learns that a United States citizen or non-
citizen national employee or dependent of an employee of a member of 
the United States Armed Forces, or a United States citizen or non-
citizen national employee of another department or agency or a 
dependent of such an employee, or a Peace Corps volunteer as defined in 
22 U.S.C. 1504(a) or dependent of a Peace Corps volunteer has died 
while in the officer's consular district while the employee or 
volunteer is on assignment abroad, the officer should notify the 
Department. The consular officer should not endeavor to notify the next 
of kin (or legal guardian) and legal representative of the death, but 
rather should assist, as needed, the appropriate military, other 
department or agency or Peace Corps authorities in making notifications 
of death with respect to such individual.


Sec.  72.4  Notifications of death.

    The consular officer should make best efforts to notify the next of 
kin (or legal guardian), if any, and the legal representative (if any, 
and if different from the next of kin), of the death of a United States 
citizen or non-citizen national by telephone as soon as possible, and 
then should follow up with a written notification of death.


Sec.  72.5  Final report of death.

    (a) Preparation. Except in the case of the death of an active duty 
member of the United States Armed Forces, when there is a local death 
certificate or finding of death by a competent local authority, the 
consular officer should prepare a consular report of death (``CROD'') 
on the form prescribed by the Department. The CROD will list the cause 
of death that is specified on the local death certificate or finding of 
death. The consular officer should prepare an original Report of Death, 
which will be filed with the Vital Records Section of Passport Services 
at the Department of State. The consular officer will provide a 
certified copy of the Report of Death to the next of kin or other 
person with a valid need for the Report within six months of the time 
of death. The next of kin or other person with a valid need for the 
Report may obtain additional certified copies after six months by 
contacting the Department of State, Vital Records, Passport Services, 
1111 19th St., NW., Rm. 510, Washington, DC 20036.
    (b) Provision to Department. The consular officer should send the 
original of the CROD to the Department, with one additional copy for 
each agency concerned, if the deceased was:
    (1) A recipient of continuing payments other than salary from the 
Federal Government; or
    (2) An officer or employee of the Federal Government (other than a 
member of the United States Armed Services); or
    (3) A Selective Service registrant of inductable age.
    (c) Provision to next of kin/legal representative. The consular 
officer should provide a copy of the CROD to the next of kin (or legal 
guardian) or to each of the next of kin, in the event there is more 
than one (e.g. more than one surviving child) and to any known legal 
representative who is not the next of kin.
    (d) Transmission of form to other consular districts. If the 
consular officer knows that a part of the personal estate of the 
deceased is in a consular district other than that in which the death 
occurred, the officer should send a copy of the CROD to the consular 
officer in the other district.
    (e) The Department may revoke a CROD if it determines in its sole

[[Page 62223]]

discretion that the CROD was issued in error.


Sec.  72.6  Report of presumptive death.

    (a) Local finding. When there is a local finding of presumptive 
death by a competent local authority, a consular officer should prepare 
a consular report of presumptive death on the form prescribed by the 
Department.
    (b) No local finding.
    (1) No local finding. A United States citizen or non-citizen 
national may disappear or be missing in circumstances where it appears 
likely that the individual has died, but there is no local authority 
able or willing to issue a death certificate or a judicial finding of 
death. This may include, for example, death in a plane crash where 
there are no identifiable remains, death in a plane crash beyond the 
territory of any country, death in an avalanche, disappearance/death at 
sea, or other sudden disaster where the body is not immediately (or 
perhaps ever) recoverable.
    (2) Authorization of issuance. The Department may authorize the 
issuance of a consular report of presumptive death in such 
circumstances. A consular report of presumptive death may not be issued 
without the Department's authorization.
    (3) Considerations in determining whether the Department will 
authorize issuance of a Report of Presumptive Death. The Department's 
decision whether to issue a Report of Presumptive Death is 
discretionary, and will be based on the totality of circumstances in 
each particular case. Although no one factor is conclusive or 
determinative, the Department will consider the factors cited below, 
among other relevant considerations, when deciding whether to authorize 
issuance in a particular case:
    (i) Whether the death is believed to have occurred within a 
geographic area where no sovereign government exercises jurisdiction;
    (ii) Whether the government exercising jurisdiction over the place 
where the death is believed to have occurred lacks laws or procedures 
for making findings of presumptive death;
    (iii) Whether the government exercising jurisdiction over the place 
where the death is believed to have occurred requires a waiting period 
exceeding five years before findings of presumptive death may be made;
    (iv) Whether the person who is believed to have died was seen to be 
in imminent peril by credible witnesses;
    (v) Whether the person who is believed to have died is reliably 
known to have been in a place which experienced a natural disaster, or 
catastrophic event, that was capable of causing death;
    (vi) Whether the person believed to have died was listed on the 
certified manifest of, and was confirmed to have boarded, an aircraft, 
or vessel, which was destroyed and, despite diligent search by 
competent authorities, some or all of the remains were not recovered or 
could not be identified;
    (vii) Whether there is evidence of fraud, deception, or malicious 
intent.
    (c) Processing. Consular reports of presumptive death should be 
processed and issued in accordance with Sec.  72.5.
    (d) Revocation. The Department may revoke a report of presumptive 
death if it determines in its sole discretion that the report was 
issued in error.

Disposition of Remains


Sec.  72.7  Consular responsibility.

    (a) A consular officer has no authority to create Department or 
personal financial obligations in connection with the disposition of 
the remains of a United States citizen or non-citizen national who dies 
abroad. Responsibility for the disposition of the remains and all 
related costs (including but not limited to costs of embalming or 
cremation, burial expenses, cost of a burial plot or receptacle for 
ashes, markers, and grave upkeep), rests with the legal representative 
of the deceased. In the absence of a legal representative (including 
when the next of kin is not a legal representative), the consular 
officer should ask the next of kin to provide funds and instructions 
for disposition of remains. If the consular officer cannot locate a 
legal representative or next of kin, the consular officer may ask 
friends or other interested parties to provide the funds and 
instructions.
    (b) Arrangements for the disposition of remains must be consistent 
with the laws and regulations of the host country and any relevant 
United States laws and regulations. Local law may, for example, require 
an autopsy, forbid cremation, require burial within a certain period of 
time, or specify who has the legal authority to make arrangements for 
the disposition of remains.
    (c) If funds are not available for the disposition of the remains 
within the period provided by local law for the interment or 
preservation of dead bodies, the remains must be disposed of by the 
local authorities in accordance with local law or regulations.

Personal Estates of Deceased United States Citizens and Nationals


Sec.  72.8  Regulatory responsibility of consular officer.

    (a) A consular officer should act as provisional conservator of the 
personal estate of a United States citizen or non-citizen national who 
dies abroad in accordance with, and subject to, the provisions of 
Sec. Sec.  72.9 through 72.27. The consular officer may act as 
provisional conservator only with respect to the portion of the 
personal estate located within the consular officer's district.
    (b) A consular officer may act as provisional conservator only to 
the extent that doing so is:
    (1) Authorized by treaty provisions;
    (2) Not prohibited by the laws or authorities of the country where 
the personal estate is located; or
    (3) Permitted by established usage in that country.


Sec.  72.9  Responsibility if legal representative is present.

    (a) A consular officer should not act as provisional conservator if 
the consular officer knows that a legal representative is present in 
the foreign country.
    (b) If the consular officer learns that a legal representative is 
present after the consular officer has taken possession and/or disposed 
of the personal estate but prior to transmission of the proceeds and 
effects to the Secretary of State pursuant to Sec.  72.25, the consular 
officer should follow the procedures specified in Sec.  72.22.


Sec.  72.10  Responsibility if a will intended to operate locally 
exists.

    (a) If a will that is intended to operate in the foreign country is 
discovered and the legal representative named in the will qualifies 
promptly and takes charge of the personal estate in the foreign 
country, the consular officer should assume no responsibility for the 
estate, and should not take possession, inventory and dispose of the 
personal property and effects or in any way serve as agent for the 
legal representative.
    (b) If the legal representative does not qualify promptly and if 
the laws of the country where the personal estate is located permit, 
however, the consular officer should take appropriate protective 
measures such as--
    (1) Requesting local authorities to provide protection for the 
property under local procedures; and/or
    (2) Placing the consular officer's seal on the personal property of 
the decedent, such seal to be broken or removed only at the request of 
the legal representative.

[[Page 62224]]

    (c) If prolonged delays are encountered by the local or domiciliary 
legal representative in qualifying and/or making arrangements to take 
charge of the personal estate, the consular officer should consult the 
Department concerning whether the will should be offered for probate.


Sec.  72.11  Responsibility if a will intended to operate in the United 
States exists.

    The consular officer immediately should forward any will that is 
intended to operate in the United States and that is among the effects 
taken into possession to the person or persons designated as 
executor(s). When the executor(s) cannot be located, the consular 
officer should send the will to the appropriate court in the State of 
the decedent's domicile. Until the consular officer knows that a legal 
representative is present in the foreign country and has qualified or 
made arrangements to take charge of the personal estate, the consular 
officer should act as provisional conservator in accordance with Sec.  
72.8.


Sec.  72.12  Bank deposits in foreign countries.

    (a) A consular officer is not authorized to withdraw or otherwise 
dispose of bank accounts and other assets deposited in financial 
institutions left by a deceased United States citizen or non-citizen 
national in a foreign country. Such deposits or other assets are not 
considered part of the personal estate of a decedent.
    (b) The consular officer should report the existence of bank 
accounts and other assets deposited in financial institutions of which 
the officer becomes aware to the legal representative, if any. The 
consular officer should inform the legal representative of the 
procedures required by local law and the financial institution to 
withdraw such deposits, and should provide a list of local attorneys in 
the event counsel is necessary to assist in withdrawing the funds.
    (c) A consular officer may not under any circumstances withdraw 
funds left by a deceased United States citizen or non-citizen national 
in a bank or financial institution in a foreign country without express 
approval and specific instructions from the Department.


Sec.  72.13  Effects to be taken into physical possession.

    (a) A consular officer normally should take physical possession of 
articles such as the following:
    (1) Convertible assets, such as currency, unused transportation 
tickets, negotiable evidence of debts due and payable in the consular 
district, and any other instruments that are negotiable by the consular 
officer;
    (2) Luggage;
    (3) Wearing apparel;
    (4) Jewelry, heirlooms, and articles generally of sentimental value 
(such as family photographs);
    (5) Non-negotiable instruments, which include any document or 
instrument not negotiable by the consular officer because it requires 
either the signature of the decedent or action by, or endorsement of, 
the decedent's legal representative. Nonnegotiable instruments include, 
but are not limited to, transportation tickets not redeemable by the 
consular officer, traveler's checks, promissory notes, stocks, bonds or 
similar instruments, bank books, and books showing deposits in building 
and loan associations; and
    (6) Personal documents and papers.
    (b) All articles taken into physical possession by a consular 
officer should be kept in a locked storage area on post premises. If 
access to storage facilities on the post premises cannot be adequately 
restricted, the consular officer may explore the possibility of renting 
a safe deposit box if there are funds available in the estate or from 
other sources (such as the next of kin).


Sec.  72.14  Nominal possession; property not normally taken into 
physical possession.

    (a) When a consular officer takes articles of a decedent's personal 
property from a foreign official or other persons for the explicit 
purpose of immediate release to the legal representative such action is 
not a taking of physical possession by the officer. Before releasing 
the property, the consular officer must require the legal 
representative to provide a release on the form prescribed by the 
Department discharging the consular officer of any responsibility for 
the articles transferred.
    (b) A consular officer is not normally expected to take physical 
possession of items of personal property such as:
    (1) Items of personal property found in residences and places of 
storage such as furniture, household effects and furnishings, works of 
art, and book and wine collections, unless such items are of such 
nature and quantity that they can readily be taken into physical 
possession with the rest of the personal effects;
    (2) Motor vehicles, airplanes or watercraft;
    (3) Toiletries, such as toothpaste or razors;
    (4) Perishable items.
    (c) The consular officer should in his or her discretion take 
appropriate steps permitted under the laws of the country where the 
personal property is located to safeguard property in the personal 
estate that is not taken into the officer's physical possession 
including such actions as:
    (1) Placing the consular officer's seal on the premises or on the 
property (whichever is appropriate;
    (2) Placing such property in safe storage such as a bonded 
warehouse, if the personal estate contains sufficient funds to cover 
the costs of such safekeeping; and/or
    (3) If property that normally would be sealed by the consular 
officer is not immediately accessible, requesting local authorities to 
seal the premises or the property or otherwise ensure that the property 
remains intact until consular seals can be placed thereon, the property 
can be placed in safe storage, or the legal representative can assume 
responsibility for the property.
    (d) The consular officer may decide in his or her discretion to 
discard toiletries and perishable items.


Sec.  72.15  Action when possession is impractical.

    (a) A consular officer should not take physical possession of the 
personal estate of a deceased United States citizen or non-citizen 
national in his or her consular district when the consular officer 
determines in his or her discretion that it would be impractical to do 
so.
    (b) In such cases, the consular officer should take action that he 
or she determines in his or her discretion would be appropriate to 
protect the personal estate such as:
    (1) Requesting the persons, officials or organizations having 
custody of the personal estate to ship the property to the consular 
officer, if the personal estate contains sufficient funds to cover the 
costs of such shipment; or
    (2) Requesting local authorities to safeguard the property until a 
legal representative can take physical possession.


Sec.  72.16  Procedure for inventorying and appraising effects.

    (a) After taking physical possession of the personal estate of a 
deceased United States citizen or non-citizen national, the consular 
officer should promptly inventory the personal effects.
    (b) If the personal estate taken into physical possession includes 
apparently valuable items, the consular officer may, in his or her 
discretion, seek a professional appraisal for such items, but only to 
the extent that there are funds available in the estate or from other 
sources (such as the next of kin) to cover the cost of appraisal.

[[Page 62225]]

    (c) The consular officer should also prepare a list of articles not 
taken into physical possession, with an indication of any measures 
taken by the consular officer to safeguard such items for submission 
with the inventory of effects.


Sec.  72.17  Final statement of account.

    The consular officer may have to account directly to the parties in 
interest and to the courts of law in estate matters. Consequently, the 
officer should keep an account of receipts and expenditures for the 
personal estate of the deceased, and must prepare a final statement of 
account when turning over the estate to the legal representative, a 
claimant, or the Department.


Sec.  72.18  Payment of debts owed by decedent.

    The consular officer may pay debts of the decedent which the 
consular officer believes in his or her discretion are legitimately 
owed in the country in which the death occurred, or in the country in 
which the decedent was residing at the time of death, including 
expenses incident to the disposition of the remains and the personal 
effects, out of the convertible assets of the personal estate taken 
into possession by the consular officer.


Sec.  72.19  Consular officer is ordinarily not to act as administrator 
of estate.

    (a) A consular officer is not authorized to accept appointment from 
any foreign state or from a court in the United States and/or to act as 
administrator or to assist (except as provided in Sec. Sec.  72.8 to 
72.30) in administration of the personal estate of a United States 
citizen or non-citizen national who has died, or was residing at the 
time of death, in his or her consular district, unless the Department 
has expressly authorized the appointment. The Department will authorize 
such an appointment only in exceptional circumstances and will require 
the consular officer to execute bond consistent with 22 U.S.C. 4198 and 
4199.
    (b) The Department will not authorize a consular officer to serve 
as an administrator unless:
    (1) Exercise of such responsibilities is:
    (i) Authorized by treaty provisions or permitted by the laws or 
authorities of the country where the United States citizen or national 
died or was domiciled at the time of death; or
    (ii) Permitted by established usage in that country; and
    (2) The decedent does not have a legal representative in the 
consular district.


Sec.  72.20  Prohibition against performing legal services or employing 
counsel.

    A consular officer may not act as an attorney or agent for the 
estate of a deceased United States citizen or non-citizen national 
overseas or employ counsel at the expense of the United States 
Government in taking possession and disposing of the personal estate of 
a United States citizen or non-citizen national who dies abroad, unless 
specifically authorized in writing by the Department. If the legal 
representative or other interested person wishes to obtain legal 
counsel, the consular officer may furnish a list of attorneys.


Sec.  72.21  Consular officer not to assume financial responsibility.

    A consular officer is not authorized to assume any financial 
responsibility or to incur any expense on behalf of the United States 
government in collecting and disposing of the personal estate of a 
United States citizen or national who dies abroad. A consular officer 
may incur expenses on behalf of the estate only to the extent that 
there are funds available in the estate or from other sources (such as 
the next of kin).


Sec.  72.22  Release of personal estate to legal representative.

    (a) If a person or entity claiming to be a legal representative 
comes forward at any time prior to transmission of the decedent's 
personal estate to the Secretary of State under 22 CFR 72.25, the 
consular officer may release the personal estate in his or her custody 
to the legal representative provided that:
    (1) The legal representative presents satisfactory evidence of the 
legal representative's right to receive the estate;
    (2) The legal representative pays any fees prescribed for consular 
services provided in connection with the disposition of remains or 
protection of the estate (see 22 CFR Sec.  22.1);
    (3) The legal representative executes a release in the form 
prescribed by the Department; and
    (4) The Department approves the release of the personal estate.
    (b) Satisfactory evidence of the right to receive the estate may 
include:
    (1) In the case of an executor, a certified copy of letters 
testamentary or other evidence of legal capacity to act as executor;
    (2) In the case of an administrator, a certified copy of letters of 
administration or other evidence of legal capacity to act as 
administrator;
    (3) In the case of the agent of an executor or administrator, a 
power of attorney or other document evidencing agency (in addition to 
evidence of the executor's or administrator's legal capacity to act).


Sec.  72.23  Affidavit of next of kin.

    If the United States citizen or non-citizen national who has died 
abroad did not leave a will that applies locally, and the personal 
estate in the consular district consists only of clothing and other 
personal effects that the consular officer concludes in his or her 
discretion is worth less than $2000 and/or cash of a value equal to or 
less than $2000, the consular officer may decide in his or her 
discretion to accept an affidavit from the decedent's next of kin as 
satisfactory evidence of the next of kin's right to take possession of 
the personal estate. The Department must approve any release based on 
an affidavit of next of kin where the consular officer concludes that 
the personal estate effects are worth more than $2000 and/or the cash 
involved is of a value more than $2000 and generally will consider 
approving such releases only in cases where state law prohibits the 
appointment of executors or administrators for estates that are valued 
at less than a specified amount and the law of the foreign country 
where the personal property is located would not prohibit such a 
release.


Sec.  72.24  Conflicting claims.

    Neither the consular officer nor the Department of State has the 
authority or responsibility to mediate or determine the validity or 
order of contending claims to the personal estate of a deceased United 
States citizen or non-citizen national. If rival claimants, executors 
or administrators demand the personal estate in the consular officer's 
possession, the officer should not release the estate to any claimant 
until a legally binding agreement in writing has been reached or until 
the dispute is settled by a court of competent jurisdiction, and/or the 
Department has approved the release.


Sec.  72.25  Transfer of personal estate to Department of State.

    (a) If no claimant with a legal right to the personal estate comes 
forward, or if conflicting claims are not resolved, within one year of 
the date of death, the consular officer should sell or dispose of the 
personal estate (except for financial instruments, jewelry, heirlooms, 
and other articles of obvious sentimental value) in the same manner as 
United States Government-owned foreign excess property under Title IV 
of the Federal Property and Administrative Services Act of 1949 (40 
U.S.C. 511 et seq.). If, however, a reasonable amount of additional 
time is likely to permit

[[Page 62226]]

final settlement of the estate, the consular officer may in his or her 
discretion postpone the sale for that period of additional time.
    (b) The consular officer should send to the custody of the 
Department the proceeds of any sale, together with all financial 
instruments (including bonds, shares of stock and notes of 
indebtedness), jewelry, heirlooms and other articles of obvious 
sentimental value, to be held in trust for the legal claimant(s).
    ( c) After receipt of a personal estate, the Department may seek 
payment of all outstanding debts to the estate as they become due, may 
receive any balances due on such estate, may endorse all checks, bills 
of exchange, promissory notes, and other instruments of indebtedness 
payable to the estate for the benefit thereof, and may take such other 
action as is reasonably necessary for the conservation of the estate.


Sec.  72.26  Vesting of personal estate in United States.

    (a) If no claimant with a legal right to the personal estate comes 
forward within the period of five fiscal years beginning on October 1 
after the consular officer took possession of the personal estate, 
title to the personal estate shall be conveyed to the United States, 
the property in the estate shall be under the custody of the 
Department, and the Department may dispose of the estate under as if it 
were surplus United States Government-owned property under title II of 
the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 
4811 et seq.) or by such means as may be appropriate as determined by 
Department in its discretion in light of the nature and value of the 
property involved. The expenses of sales shall be paid from the estate, 
and any lawful claim received thereafter shall be payable to the extent 
of the value of the net proceeds of the estate as a refund from the 
appropriate Treasury appropriations account.
    (b) The net cash estate shall be transferred to the miscellaneous 
receipts account of the Treasury of the United States.


Sec.  72.27  Export of cultural property.

    (a) A consular officer should not ship, or assist in the shipping, 
of any archeological, ethnological, or cultural property, as defined in 
19 U.S.C. 2601, that the consular officer is aware is part of the 
personal estate of a United States citizen or non-citizen national to 
the United States in order to avoid conflict with laws prohibiting or 
conditioning such export.
    (b) A consular officer may refuse to ship, or assist in the 
shipping, of any property that is part of the personal estate of a 
United States citizen or non-citizen national if the consular officer 
has reason to believe that possession or shipment of the property would 
be illegal.


Sec.  72.28  Claims for lost, stolen, or destroyed personal estate.

    (a) The legal representative of the estate of a deceased United 
States citizen or national may submit a claim to the Secretary of State 
for any personal property of the estate with respect to which a 
consular officer acted as provisional conservator, and that was lost, 
stolen, or destroyed while in the custody of officers or employees of 
the Department of State. Any such claim should be submitted to the 
Office of Legal Adviser, Department of State, in the manner prescribed 
by 28 CFR part 14 and will be processed in the same manner as claims 
made pursuant to 22 U.S.C. 2669-1 and 2669(f).
    (b) Any compensation paid to the estate shall be in lieu of the 
personal liability of officers or employees of the Department to the 
estate.
    (c) The Department nonetheless may hold an officer or employee of 
the Department liable to the Department to the extent of any 
compensation provided to the estate. The liability of the officer or 
employee shall be determined pursuant to the Department's procedures 
for determining accountability for United States government property.


Sec.  72.29  Real property overseas belonging to deceased United States 
citizen or national.

    (a) If a consular officer becomes aware that the estate of a 
deceased United States citizen or national includes an interest in real 
property located within the consular officer's district that will not 
pass to any person or entity under the applicable local laws of 
intestate succession or testamentary disposition, and if local law 
provides that title may be conveyed to the Government of the United 
States, the consular officer should notify the Department.
    (b) If the Department decides that it wishes to retain the property 
for its use, the Department will instruct the consular officer to take 
steps necessary to provide for title to the property to be conveyed to 
the Government of the United States.
    (c) If title to the real estate is conveyed to the Government of 
the United States and the property is of use to the Department of 
State, the Department may treat such property as if it were an 
unconditional gift accepted on behalf of the Department of State under 
section 25 of the State Department Basic Authorities Act (22 U.S.C. 
2697) and section 9(a)(3) of the Foreign Service Buildings Act of 1926 
(22 U.S.C. 300(a)3).
    (d) If the Department of State does not wish to retain such real 
property, the Department may treat it as foreign excess property under 
title IV of the Federal Property and Administrative Services Act of 
1949 (40 U.S.C. 511 et seq.).


Sec.  72.30  Provisions in a Will or Advanced Directive Regarding 
Disposition of Remains.

    United States state law regarding advance directives, deaths and 
estates include provisions regarding a person's right to direct 
disposition of remains. Host country law may or may not accept such 
directions, particularly if the surviving spouse/next-of-kin disagree 
with the wishes of the testator/affiant.

Fees


Sec.  72.31  Fees for consular death and estates services.

    (a) Fees for consular death and estates services are prescribed in 
the Schedule of Fees, 22 CFR 22.1.
    (b) The personal estates of all officers and employees of the 
United States who die abroad while on official duty, including military 
and civilian personnel of the Department of Defense and the United 
States Coast Guard are exempt from the assessment of any fees 
proscribed by the Schedule of Fees.

    Dated: September 28, 2006.
 Maura A. Harty,
 Assistant Secretary for Consular Affairs, Department of State.
 [FR Doc. E6-17591 Filed 10-23-06; 8:45 am]
BILLING CODE 4710-06-P