[UPDATE] Please note that fee quotes stated in historic postings may be out-of-date.
A will document should be a current (and continuing) statement of your wishes (and that of your partner in a like document) to take effect on upon your death. However, a properly constructed will-making exercise is much more than simply chopping up the estate into equal bits and putting names inside empty blanks on forms.
Whoever constructs the will must have a thorough understanding of your assets, their location, the intended beneficiaries, the manner in which the estate is to be disposed (e.g. all at once or in progressive stages as is the case in most dispositions to under-aged children).
As such, the will practitioner with professional knowledge and experience is charged with the duty of creating an unambiguous, legally binding document and providing advice alongside such document explaining the consequences of the testator’s wishes.
Various taxation and structural matters will often be of concern, and a well versed will practitioner will be able to highlight and provide necessary professional advice in order to navigate around unnecessary taxation expenses incurred through a general unfamiliarity with the law.
Similarly, “Foreign Property” may be subject to the specific inheritance laws of that jurisdiction and should therefore be advised accordingly. Foreign property will require probate in the jurisdiction where the property is located, (“Probate” is a process whereby the will which relates to this property must be presented to the appropriate Court/Registry and proven as a valid and legally binding document).
Generally, every piece of property that resides in a foreign country whether it be a second house, a foreign bank account or some other interest is subject to the probate law of that country. As a result, the trustee/executor of one’s will have to probate such will in each jurisdiction where the person has property.
For example if one owned a ski chalet in Whistler, Canada, had a bank account in Switzerland and a vacation home on the Gold Coast in Australia, that person’s executor would be obliged to probate the will in each of the three jurisdictions. Depending on probate timing, such facts could cause significant delays since the original will must be presented in each case to obtain probate or resealing of probate as the case may be.
Due to this unique probate practice, many experienced will practitioners have opted for wills that are country specific; for example you may wish to have one will to deal with all of your properties in Hong Kong and a coincidental will that deals with all your property worldwide except in Hong Kong, this would be standard simple two document approach.
You may wish to add yet another will document that deals with a specific stock trading or bank account in other third specific jurisdiction. This illustrates the need for your will practitioner to be adequately familiar with the extent of your worldwide assets and be fully aware of the effects that those worldwide assets will have when the testor passes away.
It is always advisable to have a detailed conversation with an experienced and knowledgeable solicitor so that the above issues (as well as many more that would come up in such discussion) are dealt with appropriately.
A properly constructed will including the pre-meetings with the solicitors should cost US$1,000 to US$2,000, as such it is very good value when you consider that it is effectively the road map for the disposal of your life’s work (at least economically).
A cheap cut and paste or do it yourself will risks having all or part of the estate fall into intestacy due to ambiguity or fall a foul of tax law and does not do service to individual’s short and long term goals to pass on their legacy in a thoughtful and clear manner to benefit those they hold close.
Should you require further information please contact
Weir & Associates,
6th Floor, Wings Building 110 Queen’s Road Central, Central, Hong Kong Phone: +852-2526-1767