wills & bequest issues - viberts · 2019. 7. 29. · wills & bequest issues 10 reasons to...

Wills & bequest issues

Wills & bequest issuesKarla Summers-Shaw & Elisabeth Ferrara

26 January 2017


10 reasons to make a will

1.  To deal with your assets 2.  To prevent an intestacy 3.  To save trouble, expense and delay after you die 4.  To appoint a guardian for your children 5.  To make financial provision for your children’s upkeep and education 6.  To make sure there are no arguments in the family 7.  So a spouse’s family doesn’t get everything if you die first 8.  To protect your partner if you die first 9.  To protect your own children on a second marriage 10. To make provision for elderly or disabled relatives

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The basics

A will should cover the testator’s estate and name who will deal with the administration of the estate and who will inherit it. The main points to consider should be: •  Appointment of an executor(s) •  Bequests to beneficiaries •  Funeral and burial arrangements •  Appointment of guardians and/or tuteur

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Jersey movable and immovable estate

Movable Property - bank accounts, investments, jewellery, furniture, cars, share transfer property etc. Immovable Property - freehold property, leases over 9 years, flying freehold and the benefit of certain mortgages Jersey Domiciled - Jersey law governs devolution of worldwide movable estate Devolution of immovable property is governed by the law of the place in which the immovable estate is situated

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Beneficiaries & légitime

Who can be a beneficiary? Friends, family, charity, company Légitime (forced heirship) – this only applies to movable estate Jersey Domiciled - freedom of disposition subject to potential ‘légitime’ claim What is légitime? Leaving spouse or civil partner plus descendants •  spouse or civil partner may claim one third and descendants one third

Leaving spouse or civil partner only •  spouse or civil partner may claim two thirds Leaving descendants only •  descendants may claim two thirds; remaining third is freely disposable 5


Intestacy (movable estate)

If you die without leaving a will, the law will determine who your assets go to Leaving spouse or civil partner & descendants The surviving spouse or civil partner is entitled to the household effects and the first £30k of the movable estate. The remainder is then split equally between the descendants and spouse or civil partner Leaving spouse or civil partner only The spouse / civil partner takes the whole movable estate Leaving descendants only Descendants take everything No surviving spouse and no descendants Siblings take everything

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Your assets - exceptions

As a general rule (subject to légitime) you can leave your assets to whoever you wish

•  Jointly owned property - property can be jointly owned two ways: 1.  “joint for the survivor” or 2.  in “undivided shares” (tenants in common).

Where property is owned jointly for the survivor, upon the death of the first joint owner their share of the property will automatically pass to the other joint owner(s). This is the case even if the owner who has died has made a will leaving their share of the property to another person.

Where property is owned by tenants in common each co-owner is free to leave their share of the property to whomever they wish.

•  Insurance policies •  Pension schemes •  Shares •  Assets not owned by you

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Type of bequests

•  Specific bequests •  Pecuniary bequests These can be broken down into four further categories: •  Conditional bequest •  Life enjoyment •  Reversionary bequest •  The residue of the estate after all debts and expenses have been settled

and all specific and pecuniary bequests have been made

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Conditional bequests

The terms of a particular bequest can be put into a will, meaning that a particular gift to someone can be conditional upon that person carrying out a certain action or a particular event taking place. There are certain conditions that cannot be put into a will as they are considered to be against public policy. Examples of these include: •  a condition requiring the beneficiary to commit a crime •  a condition that requires the future divorce or separation of a married

couple •  a condition requiring someone to change their religion •  unreasonable restraint of marriage (for example a condition that states that

the beneficiary cannot marry someone who is not of the same religion or race)

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Conditional bequests

Conditions that are not against public policy may also be void, including: •  a condition not to associate with a particular person or relative •  a condition to retain or assume the testator’s name •  a condition that a beneficiary’s interest in a property will be terminated if

they do not live in the property •  conditions which are inconsistent or not possible, e.g. a gift made subject

to a beneficiary reaching an age that is over the age of majority (this would only be valid if the bequest was held on trust)

Conditions that are valid include: •  a condition that the beneficiary will not contest the provisions of the

testator’s will •  a condition that the beneficiary will look after the testator’s pet •  a condition to comply with a term of a bequest within a reasonable amount

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Minors & tuteurs

Minors - the age of majority in Jersey is 18 years old. Tuteurs - if a minor inherits or receives immovable or movable property which has a value of £25,000 or more a Tuteur is automatically appointed by the Royal Court. A Tuteur may be: •  a parent or relative •  guardian of the minor •  a creditor of the minor •  the Jersey Attorney General •  any other person with leave of the Jersey Court

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Tuteur duties

The duties of the Tuteur are governed by the Children’s Property and Tuteurs (Jersey) Law 2016 and the Tutuer is required to prepare an initial inventory and to thereafter file annual accounts with the Court. It is an offence for anyone other than the Tuteur to deal with the minor’s property, or to administer the minor’s property where a Tuteur has not yet been appointed but is required.

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Pets

The law treats pets as property so it is not possible to leave a bequest directly to your pet. You can however make provision for them in your will to ensure that they are properly looked after following your death. It is important to remember that not everyone is willing or able to look after animals and the following are points you should consider: •  discuss your wishes with the person you would like to care for your pet

before you name them in your will •  consider an animal welfare charity •  expenses •  conditional bequest

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Overseas assets

If you own property abroad the assets may not be covered by your Jersey will. Each jurisdiction will have their own succession laws which may not be the same as those in Jersey. Usually immoveable property will be subject to the inheritance laws of the country in which the property is situated. Movable assets can usually be covered by your Jersey will. •  Regulation 650 / 2012 came into force on 17th August 2015 (“Brussels IV”)

•  For probate purposes you may need to make separate wills in the countries in which you own assets. If you won assets or property offshore then you should take legal advice in the country which the assets are situated.

•  Revocation issues

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Summary

5 key questions to consider when making a will… 1.  What are your assets?

2.  Where are your assets located?

3.  Do your assets form your movable or immovable estate?

4.  Who would you like to inherit your assets and in what shares?

5.  Who would you like to administer your estate?

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Thank youQuestions

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wills & bequest issues - viberts · 2019. 7. 29. · wills & bequest issues 10 reasons to...

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