AVOIDING THE TRAPS AND PITFALLS
Most wealthy individuals with an international lifestyle face, to a greater or lesser extent, two potential hazards when it comes to planning for succession.
One is to fall into the trap of under-estimating how differently the various countries with which they are involved may approach questions of property ownership and inheritance rights, and how very different tax systems across the globe can be, leading to a vague assumption that they carry their "personal" law around with them and that everything will pass on death in accordance with the laws of that country.
The other pitfall is to feel so overwhelmed by the difficulty of it all that the individual does less planning than they could or should, maybe picking the law of the country with which they feel most closely associated and taking steps to arrange their affairs in accordance with the laws of that jurisdiction, ignoring the rest.
Whether they over-simplify or feel overwhelmed, the outcome can be surprisingly similar. By failing to do justice to the variety of their assets and the locations in which they are situated, or to the international complexity of their family and other ties, the estate of a wealthy international individual is liable to be eroded by contention, and even litigation, about who should receive which assets. In addition, the tax outcome may be much worse than might have been achieved. For international clients (particularly those who have generated substantial wealth during their lifetimes, but also those who have inherited much of their fortune) frequently wish to leave their assets in a way which does not fully comply with the constraints imposed by forced heirship provisions, marital property regimes or (even where there is full testamentary freedom) a perception of fairness amongst their heirs.
There are two basic problems with international estate planning. One is that the laws of succession and tax have developed organically in separate legal systems all over the world, with very little co-ordination. For example, more than fifty years after it was founded, the European Union has only now finally begun to make some progress towards a common basis for the succession law of its millions of citizens with what is known as the "Brussels IV" regulation. While this may be useful to some, it is likely to be of limited value outside the EU.
The second fundamental problem is that families are not "tidy". It is increasingly common for the family member who is seeking to carry out estate planning to be domiciled in one country, resident in another, and a citizen of a third. In addition, they may well hold assets in a proliferation of further different jurisdictions. The interaction of the laws that apply to each of these factors can be very complex. Add to this the fact that the intended recipient of that individual's bounty may be domiciled or resident in, and possibly a citizen of, yet further jurisdictions, and it is easy to understand how the wealthy individual with international interests may feel tempted to postpone taking action – possibly until it is too late.
This chapter aims to give an overview of the issues that need to be addressed and to show how practitioners can work to assist these individuals to achieve their aims, minimise the risks, and avoid unnecessary family conflict developing.
COMMON ASSUMPTIONS (WRONGLY HELD)
All inheritance laws are similar
Many people assume that all systems of inheritance law are broadly the same. A client who has grown up in a civil law jurisdiction in continental Europe may be surprised to discover that, under many common law systems (including English law) there are no rules that require individuals to leave part of their wealth to close family members.
Conversely, if an English individual buys a property in France, he may expect to be able to leave it, and all its contents, to his second wife. He may be dismayed to find that French law imposes forced heirship, which in this case creates an obligation for part of the property to pass to his children by his first marriage – who, as it happens, are not on speaking terms with the second wife.
Even where an individual is familiar with the concept of forced heirship, he or she may not appreciate the many variants of it there are. For example, a testator from an Islamic jurisdiction who owns immovable property in continental Europe may assume that the Shari'a principles will be respected when leaving assets to his heirs (such that, for example, sons should receive twice the shares of daughters), only to find that the country in which the assets are located imposes forced heirship rules that require the property to be left equally between the children.
Ignorance may be bliss while the owner is alive, but after his lifetime that ignorance can lead to great family unhappiness, with different members of the family each sure they are the one who understand what the testator "would have wanted had he known the correct legal position". Particularly where the figures are large, this too often leads to high profile litigation which is commented upon in the press.
Taxability depends on residence
Another common assumption is that estate tax is not payable on an asset provided the owner is not tax-resident in the country where the asset is located. Sadly, this is not often the case, and it can never be relied upon without checking.
Planning can be carried out "later"
Perhaps the most common assumption of all is that everyone has time to do their estate planning later. Busy owners of family businesses, preoccupied with more pressing problems, decide that they will put it off until retirement, yet some in fact die whilst they are still working full time. Those who think they can delay planning until they see their health waning may die suddenly in an accident, or they and their advisers may discover too late that in Islamic jurisdictions certain types of estate planning become impossible when a client develops a terminal illness. Even where planning is technically possible at this stage, the individual or his or her family may find it hard to devote time and attention to it in such circumstances.
The fundamental factor that affects all cases, however, is that those who put making a Will and related estate planning off until later will often find they have missed the more attractive lifetime planning opportunities which need time to mature. In short, putting off estate planning is rarely wise and can be extremely expensive for the client's heirs.
PRINCIPAL TRAPS
Property passes in an unexpected direction
One of the main problems that can arise in an international estate is that assets pass in an unexpected direction, by operation of law. The most obvious of these is under intestacy rules which apply if an individual dies without a Will. In the UK for example, the rules of intestacy can be briefly summarised as that, if a UK domiciled husband dies leaving a wife and children, the wife will receive a fixed amount of up to ￡1/4 million plus the husband's personal possessions, and the rest of the estate will be divided into two parts: the wife will receive a life interest in half of it; and the children will receive the other half, held in trust until they reach the age of 18. This is plainly a hopelessly inadequate approach for anyone with more than modest assets (and is often inappropriate even then).
Forced heirship
As already indicated, many jurisdictions have forced heirship rules by which a proportion of the estate has to pass to certain close family members. If an individual leaves a Will purporting to direct assets in a way that does not comply with these rules, the forced heirship rules may override it. It may come as a surprise to some clients, however, that forced heirship problems that are intractable if approached only through a Will can sometimes be overcome, or at least reduced, by lifetime action, for example something as simple as opting into an appropriate "marital property regime".
Marital property regimes
Unless advance thought is given to them however, marital property regimes are themselves another area which may result in assets passing in an unexpected direction. A marital property regime can be summarised as the rules that determine who, of a husband and wife (or of civil partners in some cases), owns which of the assets that they brought to the marriage or acquired during it. These rules are generally well developed in many civil law countries. By contrast, in many countries where the legal system is of Anglo- Saxon origin, although these difficulties often do have to be addressed on a divorce, answering the question of who owns which assets following a death may well depend simply on applying the general law.
Where a marital regime does apply (and remember that one or both of the parties to a marriage or civil partnership may not have appreciated the fact that it does apply, or even have known it existed) it may be found that assets that were assumed to be in the estate are not in fact owned by the person who purported to leave them by their Will. As a result, the Will has no effect on those assets. This is explored in more detail later in this chapter but briefly, this may happen because a statutory marital property regime applies automatically to their assets, silently affecting the ownership of them as between the parties. Whether or not this arises may depend on where the parties were married, or in some cases on where they have lived during the course of the marriage. If a particular type of marital property regime does apply, it will mean that if one of them dies owning an asset in his or her sole name and assuming it belongs to them alone, the ownership in fact may or may not pass under their Will. This can be a fruitful source of conflict after death and it is vital, for certainty and harmony, to clarify during lifetime the position about whether a marital regime applies, and if so which one or ones. It will then be possible to tell whether any currently applicable regime is helpful and, if not, whether there are options for change.
Private international law
Where the laws of different jurisdictions conflict, private international law contains a number of principles which seek to resolve that conflict. Not only are these rules complex but, despite the apparent implication of the description "international", the rules of private international law are not standardised across the globe – far from it. If a dispute affects two countries, those countries may well each have different rules of private international law to decide which country's laws and courts should resolve the conflict. If the two countries' rules of private international law produce different answers to this question, then there is a further level of uncertainty to be resolved before a decision can be reached even about which country's laws is entitled to decide the more practical question of who will receive which assets.
Tax
It inevitably follows from all this that, unless careful planning is carried out, there can be unexpected tax liabilities. Take the simple example given above of the English intestacy rules (where, apart from a ￡1/4 million legacy to the spouse, half the estate passes to the spouse for life and the other half passes to the children in trust until they reach the age of 18). Assets which pass from a parent to a child attract an inheritance tax liability of 40% in the UK. By contrast, assets passing to a surviving spouse may well be exempt from inheritance tax. It is immediately obvious from this that, in some cases, failing to make a Will and allowing the intestacy rules to apply can give rise to enormous expense which, in practice, was unnecessary. On the other hand, simply leaving everything to the spouse to avoid inheritance tax could give rise to a different set of problems. A balancing of all the factors is needed.
Specialist advice, taken in advance, can ease or even eliminate many of these problems. What certainly cannot be done, however, is to assume that all laws are the same, or that one has complete freedom of choice about which ones apply.
TWO-PRONGED SOLUTION
It is, therefore, crucial to plan how assets will devolve, and this will generally involve a two-pronged approach. One is to take advantage of lifetime planning opportunities, and the other is to orchestrate the best possible Will or, quite often, Wills. This chapter focuses principally on the latter – the key role played by an appropriate testamentary structure. To set it in context, however, a brief summary is given of some of the principal lifetime planning options.
A BRIEF OVERVIEW OF LIFETIME PLANNING POSSIBILITIES: ASSET HOLDING STRUCTURES AVAILABLE
Trusts
The trust is a primary option available to reduce the impact of any potentially relevant forced heirship or spousal inheritance laws. Assets are placed in the hands of trustees, who administer them for the benefit of a set of beneficiaries. The beneficiaries receive the economic benefit in the form of distributions, but they will not own the legal title to the assets. In this way, for example, a large family shareholding may continue to generate dividends for several generations, without the need for the assets to be broken up or made vulnerable to third party claims.
In the case of a non-testamentary disposition to a trust, the relevant legislation in virtually every offshore jurisdiction where the trust is likely to be based expressly provides that the capacity of the settlor to make the trust, and any disposition under the trust made by the trustees, is to be determined by the law of the jurisdiction which governs the trust without regard to the laws of any other jurisdiction (save where the property is immovable). This is intended to protect a lifetime trust from being challenged on the ground that the trust or disposition avoids or defeats the right, claim, or interest of persons arising from forced heirship entitlements. In the testamentary context, by contrast, this is not generally the case and the law of the testator's domicile will usually apply.
Accordingly, depending on the jurisdiction selected for the trust, a lifetime trust (rather than one made by Will) may be an essential starting point if the settlor wishes to protect settled property free from such claims.
There is of course a risk, in cases where the assets are physically situated in a jurisdiction other than that which governs the trust, that the courts of the jurisdiction where the assets are located will not recognise the trust, or will look through it in favour of forced heirship/spousal inheritance claims. In setting up such a structure the settlor's lawyers will therefore need to seek legal opinions in the jurisdictions where the assets are located.
In short, the trust has the potential to be a good, protected vehicle for lifetime planning. This will, however, only be so provided that, when it is created, careful checking is done that the inter-play between the trust's jurisdiction and other jurisdictions in which the settlor has interests will be successful, and that the assets chosen to go into the trust are appropriate for this purpose. The tax consequences must, of course, also be considered.
Foundations
As a generalisation, foundations tend to benefit from strong asset protection provisions. Questions concerning the foundation itself, or about the endowment of a foundation, are likely to be determined in accordance with the law of the jurisdiction in which the foundation was formed rather than foreign laws. This includes questions in relation to the capacity of the founder to incorporate the foundation, or of any person to endow it.
So the incorporation or endowment of a foundation will generally not be void, voidable, liable to be set aside or invalid because the incorporation or endowment defeats a claim imposed by a foreign law (by reason of a personal relationship with the founder or its forced heirship rules). Similarly, the capacity of any person carrying out a function or role or linked in some way to the foundation will not generally be questioned on any of these grounds, and no such person would be subject to any obligations imposed by a foreign law on these grounds.
As with a trust, however, where any of the assets in a foundation are situated in one or more of the founder's "home" jurisdictions, it will be important to identify in advance the approach that that jurisdiction will take to their being placed in the foundation, both in terms of ownership and in terms of taxation.
In some cases the foundation may have the advantage over the trust that individuals from civil law backgrounds may have a greater familiarity with the concept.
Life insurance
A third possible option involves use of a life insurance policy. This can have the benefit of permitting the client to retain greater control of his assets during his lifetime, as some of the assets invested in the structure can be invested back into the client's business if this is desired (and permitted in the client's home jurisdiction). However, life insurance policies are generally not as suitable as trusts when it comes to dealing with disputes amongst the beneficiaries. The tax considerations must also be taken into account in the various jurisdictions with which the beneficiaries are connected.
Dispositions of property to a so-called "bailee" (but more likely the recipient of a gift)
A fourth option sometimes used, particularly if a client wishes to divest themselves of their assets very rapidly, is the "derivative contract" under which they give certain assets to a third party who is under no legal obligation to return them but who may, on demand, return them to the "settlor" or to a designated third party.
Where there is a wish to get assets out of their name quickly, a potential settlor may be very tempted to use a "derivative contract", but this option is highly risky. In the early stages, if title to the assets is not actually conveyed, the arrangement amounts to an incomplete gift and the property remains in the hands of the "settlor". After that, the "settlor" has no legal remedy against the recipient and the recipient owes no obligation to the donor or any designated third party. When the 'beneficiaries' discover fraud or mismanagement in the derivative (if they are fortunate enough to find out about it at all) they too will be left without a remedy.
Even if this structure were to work "well", it should be approached with great caution since it bears the hallmarks of fraud or (at best) a sham.
PLANNING FOR AN INTERNATIONAL WILL OR WILLS
It is a truism that a key step for everyone who wants their wishes to be respected is to make a Will, prepared by someone who is appropriately qualified. For someone whose lifestyle crosses borders this may well, in fact, mean making more than one Will, and ensuring that advisers from the relevant jurisdictions are both suitably qualified and sufficiently experienced in dealing with international estates, and also that they work together to achieve the best overall global outcome.
One Will or more than one Will?
If more than one jurisdiction is involved, it may be helpful to make more than one Will to deal with assets in individual countries separately. There are advantages and disadvantages of doing this, to be balanced against each other according to the facts of the particular case. If there are several Wills covering different jurisdictions, it is easy when making changes in one country to revoke one or more of the other Wills accidentally. The result may be that the individual will die intestate in the jurisdictions where the Will(s) had been revoked, without this being noticed until it is too late. This need not be the obvious trap of incautiously drafting a new Will so that it revokes all previous Wills, rather than merely the old Will in the same jurisdiction. For example, an underappreciated pitfall is that not all jurisdictions have the same rules as to whether a marriage revokes a Will, or the effect of divorce on a Will. In some cases, either of these actions can affect a seemingly unrelated Will dealing with assets in another jurisdiction. It is therefore important to coordinate the work of the different advisers around the world.
Combined with a trust or a foundation?
Particularly in cases where managing the succession to "core" family assets is of importance (for example, where there is a family business or a large property holding), separate wealth holding structures, operating outside a Will, may ensure the long term preservation of assets within a family. As already explained, in common law jurisdictions this has tended to be done through trusts. In civil law jurisdictions a similar role is sometimes fulfilled through the use of foundations.
Tax
Tax is, again, of crucial importance in estate planning for international families. As in the case of succession rules, the tax laws in different jurisdictions may well conflict, but the effect of this can be mitigated by taking advantage of the international tax planning techniques available. In some cases, exemptions are available in different countries and can be dovetailed successfully. In other cases, reliance can be placed on double tax treaties between the jurisdictions involved. Detailed advice is, however, needed in each case.
WHAT IS IN THE ESTATE?
The first step in approaching a new piece of estate planning is often to consider what is in a client's estate. As already hinted, this is often as not straightforward as it might at first sight appear.
Marital property regimes
Marital property regimes can have an important effect on how assets pass down through a family. All legal systems have tried, with varying degrees of success, to provide for the management and devolution of the property of married couples. Many countries impose a marital property regime unless the parties choose to opt out of it by making a marriage contract, sometimes referred to as a prenuptial or ante-nuptial contract. For example, some continental European jurisdictions provide that a marital regime of "community property" will apply to the assets of the couple – either all the assets or only those generated during the marriage. This means that, if the parties subsequently divorce or if one of them dies, the assets concerned will be treated as belonging to both spouses jointly, even if they are registered in the name of one of the spouses only.
Certain US States have marital property regimes that apply unless action is taken to exclude them. These include California (reflecting the historical influence of Spanish law) and Louisiana (reflecting the historical influence of French law). In advising on estate planning, therefore, it is important for the adviser to be aware of any statutory regimes that may apply, and any contracts which have been entered into that vary the statutory regime. This becomes more complicated where the parties have moved around the world – for example, if they were married in Monaco and later became resident in the UK before moving to the US. What will be the effect of any contract that they have entered into about their marital property regime? The answer will, in many cases, be: it depends on a variety of factors.
Other assets may also pass outside the estate of the person for whom the planning is being carried out. In many countries, it is possible to leave a life assurance policy to a beneficiary without it passing under a Will. Jointly owned property may or may not pass through the Will; each country has its own rules about this and the detail needs to be checked.
Limits on testamentary freedom - forced heirship and similar rules
Throughout the world, there are limits on the freedom which individuals have to leave their assets to whomever they wish. Forced heirship rules are particularly important to understand, not least because where they apply, they override the provisions of a Will. As already explained, typically they require part of the estate – often referred to as the legal reserve or reserved portion - to be left to specific family members. The size of the reserved portion may vary depending on, for example, the number of children of the testator. In Shari'a law there are complex provisions specifying which relatives are to receive a portion of the estate, the details of which will depend on the particular school of Islam involved. In some countries the rules only affect immovable property – land and buildings – if the testator is not domiciled in the country concerned. There are ways in which the impact of forced heirship rules may be mitigated. These include the following:
- Lifetime gifts – In some jurisdictions a lifetime gift may be made that will not be counted as part of the overall division of the donor's estate at the time of his or her death. More often, however, there is a concept of "clawback", meaning that lifetime gifts notionally have to be added back to the estate before it is divided between the heirs. So in these countries a lifetime gift, without more, may not alter the way in which the estate is ultimately divided, depending on the precise nature of the clawback.
- Trusts or foundations of suitable assets in favourable offshore jurisdictions – As already indicated, it is sometimes possible to mitigate the impact of the forced heirship rules in respect of certain assets if these are placed in trust or in a foundation. An increasing number of trust jurisdictions provide that the forced heirship rules of another country will not be enforced by the jurisdiction of the governing law of the trust. Provided the assets are themselves located in a jurisdiction that recognises trusts, this may be successful. It is more difficult, however, to avoid the impact of forced heirship rules where the assets consist of immovable property situated in a country which has forced heirship rules and cannot be moved from that place.
- Conversion to movable assets – In some cases it may be worth exploring whether an immovable asset may be "converted" to a movable asset, usually by transferring it to a holding company. It is then possible to give away the shares in the holding company. The underlying assets remain the same, but the nature of the property owned has changed from being an immovable (which it is hard or impossible to leave other than in accordance with forced heirship) into a movable where the forced heirship rules may be more flexible.
- Compensation by testamentary gifts in other jurisdictions – Many testators have as their overall aim a wish to be fair to their family, but to make sure that a particular family member inherits a specific asset. If the succession laws of the different countries involved are taken in isolation, it may be difficult to achieve this without infringing the rules in one country and exposing the estate to a potential claim from other disappointed family members. However, it is sometimes possible to "compensate" them in another country by making larger gifts to the other beneficiaries there, thus ensuring overall equality in monetary terms between the beneficiaries. Whether or not this is practicable will depend on the facts of the case.
Other redistributive rules and principles
Other statutory rules that do not strictly relate to forced heirship may also intervene. In the UK, for example, whilst individuals are in principle free to leave their assets to whomever they wish, it is possible for certain family members and dependants to bring a claim in the English Courts under the Inheritance (Provision for Family and Dependants) Act 1975. Whether or not this is possible will depend on a number of factors – including that currently the law may not be invoked if the person making the Will was not domiciled in the UK at the time of death. Some other common law jurisdictions have parallel legislation, which will vary in detail.
CONFLICT OF LAWS AND VALIDITY OF WILLS
The rules relating to conflict of laws (otherwise known as private international law) have already been mentioned. They are fairly technical and generally beyond the scope of this chapter. However, a couple of points on their effect on the validity of Wills in international situations should be noted, to give a flavour of the issues that may need to be resolved when planning a family's affairs.
If a question arises about the validity of a Will, two separate aspects need to be considered: formal validity; and material (or essential) validity.
Formal validity
To be valid, a Will must be in a form that is legally recognised in the countries which it covers. Different countries have different rules, for example as to the number of witnesses, or whether the Will must be handwritten by the testator. Many have, though, ratified the Hague Convention on Testamentary Dispositions of 1961, which introduces a considerable degree of conformity. There are countries, however, which have not ratified the Convention and formal validity is something always to be checked in an international situation.
Material or essential validity
A Will also needs to be valid as to its substance. This is separate from formal validity, which simply decides whether the piece of paper which it is claimed is a Will should in fact be recognised as a valid Will. The issue for material or essential validity is whether the Will complies with the succession laws that affect it. Again, these rules are complex and advice needs to be taken in light of the particular facts.
It is usually possible to manage the conflict of laws between countries, but it requires coordination and specialist expertise. One of the most frequent sources of difficulty is where an individual client has tried to save expense, or preserve confidentiality, by not allowing different advisers to communicate with one another, with the result that a legal concept is misunderstood when the client reports to his adviser in one country what another adviser has said elsewhere. At best, this can give rise to additional expense after the client's lifetime. At worst, it can result in the estate not passing how the client intended and/or in unforeseen tax liabilities.
CONCLUSION
It will be seen that there are clear principles that shape the approach to assisting a client to achieve his or her wishes for the devolution of property after his or her death. Most fundamental is to be properly clear about what the estate actually comprises: rules such as forced heirship, or an unsuspected matrimonial regime which applies, can mean that this may not be the same as the client has assumed is obviously the case. Once the assets in the estate have been correctly identified, the next step should be to see whether the client's wishes can indeed be effected simply by using a Will or Wills, or whether a lifetime structure such as a trust or foundation is also needed to avoid the expense, publicity and distress that will arise from conflict among the family and other beneficiaries.
Originally published in The International Comparative Legal Guide to: Private Client 2013
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
