Preparation can prevent feuds over fortunes

PUBLISHED : Sunday, 15 June, 2003, 12:00am
UPDATED : Sunday, 15 June, 2003, 12:00am

To appreciate the importance of appropriate estate and succession planning, consider some of the bitter disputes that emerge in Hong Kong's court system.

Close relatives argue over their share of the family wealth, often when the patriarch has passed away.

Wives do legal battle with mistresses claiming their share of an estate. Children born outside of marriage can claim they are entitled to part of an estate, and there are many examples where siblings feel unfairly treated in the division of wealth and look for a legal remedy.

Many such cases, with the huge cost and embarrassment they involve, could have avoided if families arranged for wealth division and transfer well in advance of an elder's death.

Fortunately, awareness of the need for estate planning is increasing in Asia. Wealthy people from diverse backgrounds are realising it makes sense to have a plan in order to protect their assets and pass them on in an orderly manner.

A reason for estate planning is to legally minimise the liability of taxes payable on a deceased person's assets. Estate duties and inheritance taxes range from 15 to 18 per cent on assets in Hong Kong to 40 to 55 per cent in Britain and the United States.

A bereaved family could do without worrying over estate taxes and experienced estate planners at private banks understand this need.

As people reach their 50s and 60s they will consider the need for some estate planning to avoid losing a significant part of their family's wealth to the state treasury.

Another reason is to avoid the messy situation of unravelling a deceased person's assets held in various overseas jurisdictions.

As an example a high net-worth investor without an organised estate dies holding a portfolio of shares registered in several markets. Before any assets can pass to the next generation, they must deal with having them frozen by foreign governments, which will occur if someone dies holding foreign stocks in their personal name.

The family members will need to have their lawyers help them through the probate process in the relevant markets and prove ownership, a process that can take years, especially if there are any arguments between the beneficiaries.

This, again, is a situation easily avoided with careful estate planning.

Trusts have proven their use in proper estate planning time and again.

By transferring their assets into a trust while they are alive, wealthy investors can avoid having their assets frozen after death and putting their relatives through unnecessary inconvenience.

Once funds are in the trust structure, governments have no need to put relatives through the probate process because legal ownership has passed from the individual to the trust.

When the trust is established, trustees take over the responsibility of managing the complex financial transactions that come with the underlying portfolio.

Trusts exist under English common law. They date back to the days of the Crusades when young men about to travel into battle wanted to secure their assets in the event of their death. In those days they were based on crude agreements and documents, but the aim was essentially the same as it is today: to transfer assets in the way one wants after one's death.

The Anglo-Saxon trust is recognised in any common law jurisdiction.

As the body of law has evolved, the relationships between the parties have been more clearly defined.

Basically, a trust is an asset-holding entity, with a trustee - either an individual or an institution - as administrator.

Because they can be costly to set up, trusts are really suitable only for high net-worth clients, particularly as they grow older.

The trust is often based in an offshore financial centre. In fact, several countries have gone out of their way to attract trust business by making their legal systems trust-friendly.

Basing the trust in a politically stable offshore country is a feature popular with clients who are averse to political risk of any kind.

Anyone establishing a trust will need to be familiar with specialist language. A settlor is the individual who sets up the trust by transferring assets into the trust fund.

An agreement is made between the settlor and the trustee, the legal owner of the assets which have been transferred. This agreement sets out where the assets are to be transferred in special circumstances, such as the death of the settlor.

In a discretionary trust, distributions are made at the discretion of the trustee. A fixed trust, on the other hand, sets out clearly when and how much each beneficiary will receive.

In addition to trusts, foundations are often used in estate planning. These entities are based on French civil law, which is commonly recognised around the world.

Foundations are otherwise similar to trusts. They are usually established to be based in a financial centre such as Liechtenstein or Panama.

The beneficiaries are usually family members. But, unlike trusts, which have a limited life span of say, 80 to 100 years, a foundation can be established to last forever.



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