Successful together. Do I need a Will in Singapore? Dr. Paul Weingarten SSiS Singapore

Transcription

1 Successful together Do I need a Will in Singapore? Dr. Paul Weingarten SSiS Singapore

2 Rödl & Partner worldwide Austria Azerbaijan Belarus Brazil Bulgaria Croatia Cyprus Czech Republic Estonia Finland France Georgia Germany Hong Kong Hungary India Indonesia Italy Kazakhstan Latvia Lithuania Malaysia Mexico Moldova Myanmar People s Republic of China Poland Romania Russian Federation Serbia Singapore Slovakia Slovenia South Africa Spain Sweden Switzerland Thailand Turkey Ukraine United Arab Emirates United Kingdom USA Vietnam colleagues 94 offices 43 countries Rödl & Partner

3 Agenda 01 Will and Intestate Succession? 1.1 General Thoughts 1.2 Inheritance Law in Germany and Singapore 1.3 Examples 1.4 Inheritance Tax 02 Guardianship and other precautionary measures 2.1 What will happen without arrangement? 2.2 Guardianship Declaration 2.3 Lasting Power of Attorney and Advance Medical Directive 3

4 General Thoughts Nationality and residency of the testator? Where are the assets located? What kind of assets? Who are the beneficiaries? Intestate or testamentary succession? Formal requirements? Nationality and residency of the beneficiaries? 4

5 Inheritance Law overview With the death of the deceased the inheritance passes over to the beneficiary No witnesses needed for Will Mutual Will and contract of inheritance Entitlement to statutory portion for partners and close relatives Executor to administer estate and distribute assets to beneficiaries Witnesses needed for valid Will No Mutual Will or contract of inheritance No entitlement to statutory portion of estate Entitlement to maintenance for wife/husband, infant children, unmarried daughter (discretion of court) 5

6 Applicable succession laws Entire estate (Movable / Immovable assets) citizenship Movable assets domicile Immovable assets location (lex rei sitae) 6

7 Applicable succession laws Entire estate (Movable / Immovable assets) domicile Entire estate (Movable / Immovable assets) citizenship 7

8 Estate planning applicable laws in Singapore Wills Act (Cap. 352) Intestate Succession Act (Capt. 146) Probate and Administration Act (Cap. 251) Administration of Muslim Law Act (Cap. 3) Inheritance (Family Provision) Act (Cap. 138) Trustees Act (Cap. 337) Trust Companies Act (Cap. 336) 8

9 Statistics Percentage of Germans who made a Will Yes No 17% 83% Percentage of inheritance cases that are uncoordinated or evoke conflicts coordinated 84% uncoordinated 16% 9

10 Without a valid Will estate subject to intestate succession if no beneficiary estate could fall to the state no choice on who will look after your estate Example of intestate succession grandchild son spouse decedent grandchild daughter SIN - Only legitimate and adopted children GER / CH / AU - Also illegitimate and adopted children brother nephew parents sister niece uncle grandparents aunt 10

11 The Will in Singapore Written Will At least 21 years old Signed by own hand In the presence of 2 witnesses Witness beneficiaries or spouse May become invalid by crossing parts or adding words later make codicil! Automatically revoked upon marriage or remarriage Making known your Will Information to family and friends especially the executors where to find it Register with the Wills Registry (not mandatory) CPF (Central Provident Fund): Make nomination for CPF account with CPF Board Without a nomination funds in CPF will be distributed in accordance to the intestate succession (despite a Will!). 11

12 The Will in Germany and Switzerland Handwritten Will Autographic and signed by own hand No notarial documentation, registration or witnesses needed At least 16 years old At least 18 years old Deposit at Notary (GER also at probate court) possible Will to be registered at Central Register of Wills Public Will Declaration of the Will in front of notary Oral, autographic, written in other forms (computer etc.) Contract of inheritance 2 witnesses needed in addition 2 witnesses needed in addition Only between married couples and registered partnerships Mutual Will Invalid 12

13 Recognition of foreign Will in Singapore German Will to be used in Singapore to claim estate Foreign for court proceedings to be completed; foreign equivalent to Grant of Probate (e.g. Erbschein ) Reseal grant in Singapore Application to High Court: Original Grant or duplicate issued by foreign court / authority Certified translation Affidavit from foreign lawyer 13

14 Entitlement to a compulsory portion of the estate Entitled to a compulsory portion are: children, spouse and registered partnerships parents only just if no one else is alive ½ of the entitlement according to intestate succession children, parents, spouse and registered partnership for children ¾ of the entitlement according to intestate succession for parents and partners ½ of the entitlement according to intestate succession 14

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16 EU-ErbVO from 17/08/2015 NEW: For all citizens of EU Usual place of residence no relation on citizenship anymore Problem: no clear definition of habitual residence determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased s presence in the State concerned and the conditions and reasons for that presence Choice of law of nationality possible Must be in Will Does not apply for inheritance tax! 16

17 Example 1 Mr Mustermann owns assets in Germany and Singapore (movable and immovable assets) and returns to Europe to spend his retirement in Mallorca only. Inheritance after 17/08/2015: If no choice of law has been made: Spanish inheritance law will apply Eventually conflict with Singapore inheritance law regarding immovable assets and/or differing regulations on the entitlement of the statutory portion of close relatives. Note: Make a choice of law (your nationality or domicile) 17

18 Example 2 Mr and Mrs Müller and their two children are German citizens. They moved to Singapore 2 years ago. Their house in Germany is rented out. In Singapore they have rented an apartment. Bank accounts, various furniture and fittings as well as other movable assets exists in both locations (Germany / Singapore). 18

19 Example 2 Entire estate (Movable / Immovable assets) German inheritance law Movable assets German law applicable (2 years probably not enough for domicile) Immovable assets House is situated in Germany German inheritance law 19

20 Example 3 Family Schmitt has moved to Singapore. The family has a bank account in Germany. In Singapore family Schmitt owns an apartment in a condominium. Furthermore, various bank accounts were opened in Singapore. However, they intend to relocate back to Germany within the next few years. 20

21 Example 3 Entire estate (Movable / Immovable assets) German inheritance law Movable assets German law applicable (2 years probably not enough for domicile) Immovable assets Apartment is situated in Singapore Singapore inheritance law 21

22 Inheritance Tax / Estate Duty Regulated by state Different tax credits for children, partners etc. Tax rate between 7 50 % Regulated by canton Children, parents, siblings in some cantons exempted from tax Tax rate between 1 50 % 22

23 Example 4 Mr Meier moved to Singapore without deregistering his residence/domicile in Germany. 7 years later Mr. Meier passes away and leaves behind property in Singapore and Germany. This applies to Swiss citizens as well, as under Swiss Law the taxation of the estate is dependent on the last residence/domicile of the deceased. No DTA on inheritance and gift tax between Switzerland and Singapore Mr Meier has been a German citizen. However, the German Inheritance Tax is dependent on his residency ( Inländer ). Primarily: ordinary residency Registration in Germany: serves as a indication; actual place of residence conclusive Factually: Singapore. 5 years residing out of Germany Taxation of estate in Germany = limited tax liability No DTA on inheritance and gift tax between Germany and Singapore 23

24 Guardianship for the children What would happen to a child if both parents pass away? Child will be placed under the care and protection of the Ministry of Social and Family Development (MSF) Ministry will arrange temporary caregiver Singapore court appoints any person who applies to be the guardian on the basis of welfare of the infant! Without any application the child will be placed in a children and young person s home 24

25 Guardianship Declaration Appointment of Guardian in Will Guardianship Declaration (notarized signature of both parents recommended) Temporary or Permanent Guardian State reasons for choosing the Guardian Do not appoint your domestic helper as Guardian she may lose legal right to be in Singapore after death of employer 25

26 Lasting Power of Attorney (LPA) Appointment of one or more people you trust to act and make decisions on your behalf if you lack mental capacity in the future your doctor has the last word! Takes effect, when donor loses mental capacity At least 21 years and no mental disorder Sign in presence of lawyer or medical doctor Donee must accept LPA Registration with Office of Public Guardian Advance Medical Directive Act (AMDA) and Mental Capacity Act (MCA) 26

27 Lasting Power of Attorney (LPA) 27

28 Advance Medical Directive (AMD) Legal document you sign in advance to inform your doctor that you do not want the use of any lifesustaining treatment to be used to prolong your life in the event you become terminally ill and unconscious Regulated in Advance Medical Directive Act (AMDA) and Mental Capacity Act (MCA) At least 21 years and no mental disorder AMD must be made through doctor (consultation) Complete AMD form and sign in presence of 2 witnesses (one of them must be your doctor!!) Revocable at any time in the presence of at least one witness Alternatively with a simple letter to the Registrar of AMDs return to Registrar of Advance Medical Directives 28

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30 Your contact Dr. Paul Weingarten (Partner) Photo Rödl & Partner 1 Scotts Road #21-10 Shaw Centre Singapore Tel Fax l: paul.weingarten@roedl.pro Each and every person counts to the Castellers and to us. Human towers symbolise in a unique way the Rödl & Partner corporate culture. They personify our philosophy of solidarity, balance, courage and team spirit. They stand for the growth that is based on own resources, the growth which has made Rödl & Partner the company we are today. Força, Equilibri, Valor i Seny (strength, equilibrium, valour and common sense) is the Catalan motto of all Castellers, describing their fundamental values very accurately. It is to our liking and also reflects our mentality. Therefore Rödl & Partner embarked on a collaborative journey with the representatives of this long-standing tradition of human towers Castellers de Barcelona in May The association from Barcelona stands, among many other things, for this intangible cultural heritage. 30