Do You Have a Will?

If you have not already made a Will, you should. If you do not have a Will, you may be putting the distribution of your assets and the guardianship of your children at risk.

If you have not already made a Will, you should. If you do not have a Will, you may be putting the distribution of your assets and the guardianship of your children at risk.

If you do not make a Will and you die you are said to die intestate. The distribution of your estate will then depend on where you die and where you have assets and could take literally years to settle. Meanwhile your family will need to go through possibly complex and expensive legal proceedings and could end up being treated unfairly.

Much of this will depend on where you are domiciled and where you die. But children will be subject to the laws where you and they are resident. So, if you have your family with you in Asia and you leave your children as orphans they will immediately become subject to the laws of the country where you live.

In Hong Kong children will automatically be taken into care and a court will decide what happens to them. They can be sent to foster homes and, without a Will to govern who takes custody, they may suffer horrendously. Even if a family member turns up from a home base there will be legal hearings and awful emotional stress for the entire family. Do you want that? Is this really how you would want your children treated?

In Thailand things are slightly different. The Thai authorities tend to want a family to resolve the guardianship of orphaned children amongst themselves. The Thai courts only step in if required or temporarily when children find themselves homeless and in need of care whilst a family member is travelling.

Similarly with assets. Each country has different rules and laws about what happens to people who die intestate. This is where a probate court is called into play. The court ordinarily accepts an application from executors of a Will to grant them permission to distribute assets in accordance with the Will; a grant of probate. However, where there is no Will the probate court will apply the rules of the land and have the assets distributed in accordance with the law.

Each jurisdiction has their own specific rules and these usually mean that your estate would be split and distributed as directed by the court. More often than not there are apportionments of assets to a spouse and children. Often the spouse may consider these unfair and not in accordance with their partners wishes. They are also often correct.

Many expats have asset spread over a number of countries. This makes things even more complex with a Will let alone without one. When you have assets spread like this they will be subjected to the probate court in each of the countries where they are situated. So, if you had bank accounts in Hong Kong, Thailand, Jersey & the UK, investments in Isle of Man, property in Singapore and a physical gold holding in Switzerland, there are seven jurisdictions where your executors need to obtain a grant of probate.

If you do not have Wills covering these places your executors will find it a nightmare to obtain probate. This will likely take many years. Just think how badly your family will suffer whilst this is going on. Remember that they will have access to nothing until the probate issues are resolved.

Even when you have Wills it is an arduous process which can take a long time. But if you have put Wills in place it is a much simpler process.

You do not have to put a Will in place for every single jurisdiction where you have assets. There is no hard and fast rule for this. It is best to meet an expert and discuss your own personal circumstances with them. During the discussion it will become clear where you need a specific Will and then there will be a general Will for your home country and the rest of the world, excluding the places which have a specific Will.

One of the things to consider is how to arrange for your family to have access to reserves to keep them going whilst your Will is administered. This is often solved by taking a relatively small life assurance policy which will pay out without reference to probate immediately after you die.

Have you also considered a living Will? Many people do not understand this concept simply because it has not been explained. This is a document in which you state your wishes if you are incapacitated by accident or illness but do not die. The main features are whether you are kept alive when the situation becomes totally hopeless following such accident or contraction of serious illness. If you are in a coma, for example, with absolutely no chance of a life even if you emerge from the coma, then you may state in the living Will that you prefer life support to be terminated. This is something which a family often finds the most difficult decision of all if it is left up to them. If you have stated your wishes in a living Will this makes it easier for the family and action instructions may be given to the appropriate medical staff.

Making a Will as part of a succession plan is a very important move. If you have not done this then I urge you to see sense for your family’s sake.

PFS have a fiduciary department and are able to organise and arrange all the details for you. Contact us at enquiries@fsplatinum.com for more details.

Questions to the author can be directed to info@businessclassasia.com

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Friday, 2015-07-17 12:06 Age: 2 Years