If you don’t write your own will, the government of where your assets sit has one for you – they will decide where your assets go!
How property (assets) passes on your death
The old adage, “you can’t take it with you,” literally applies under the law, immediately upon your death. Because you can’t take it with you, the assets you have accumulated during your life must pass to other parties.
How that property gets to your heirs (automatically or by “court” action) depends upon how you own the property, what type of property it is and any beneficiary designations.
If you have a property that is also owned by another then you need to establish if this is jointly owned or under tenants in common. The former allows the property to pass onto the remaining owner by default, but still requires proof of death to remove the deceased partner from title; but if tenants in common, your 50% must be designated to beneficiaries as the remaining partner cannot sell the property without having all titles in place.
If you haven’t written a Will then the property has to stay owned as it is until the courts decide who would receive your 50%.
Property that does not pass by beneficiary designation passes through the court system in the probate process. This is usually at least your bank account. The court will allow distribution to your heirs according to the terms of your Will after the Will goes through a special proceeding (often called proving the Will). A properly executed Will allows you to choose those individuals or organizations who will receive your property at your death.
Unless special circumstances arise, i.e., the Will is contested, the court will enforce your wishes as to the distribution of your property.
Your Will, death certificate, and list of assets would be submitted to get the Grant of Probate – the approval for your Executor/s to collect your assets for distribution to your beneficiaries.
It can still take months, even years to distribute your estate in its entirety with only a Will in place depending upon the ownership of assets (maybe a Thai company property) or who owns (joint tenancy means the remaining owner has to pay out) or maybe listed assets cannot be found … there are many reasons.
Jointly Owned Property
Many married couples own many of their assets jointly with the right of survivorship. When one spouse dies, the surviving spouse automatically receives complete ownership of the property.
But, is holding all your property as “tenants by the entirety” (limited to husband and wife) or in joint tenancy (not necessarily limited to husband and wife), desirable in most instances?
It is true that if all your property is jointly owned, the survivor will obtain everything by operation of law and without the necessity of probate proceedings. Does it follow then that joint ownership is a substitute for a Will or the best tax plan? The answer is a resounding no! … and here’s why:
Simultaneous deaths may cause jointly owned property to pass to persons other than those you would have liked to receive it.
There will always be some degree of uncertainty that all your property will be jointly owned – e.g., an unexpected inheritance or other substantial treasure troves may come your way just before you die.
Jointly owned property limits the possibility of distributions to beneficiaries other than the joint owner.
Holding most or all of your property in joint tenancy may make it impossible for you to take advantage of certain estate planning techniques, such as family trusts
Having a will to explain the inheritance would clarify any confusion.
Life insurance proceeds payable to a named beneficiary pass without regard to the terms of a person’s Will. Therefore, insurance will generally pass outside the probate system.
However, your death certificate is needed for this and can take months to issue as insurance companies always need to know your cause of death.
If you have not named beneficiaries, then the value of the insurance is added to your estate and given out according to your will or the courts if you have not written one.
Retirement Plans and Trusts
Other property that may pass to named beneficiaries automatically and without regard to a Will include benefits of qualified retirement plans, annuities, and inter vivos (living) trusts.
Both are forms of trusts and can give immediate access of the contents to your named beneficiaries without the need for legal intervention, therefore saving time, costs, and financial stress for your loved ones.
These should be additional to your will.
The Guardians of your minor children
The people who are most important to you, your spouse and your children, are affected by your estate plan in ways other than what property they will receive at your death.
For your minor children, who you select as their guardian will be one of the key decisions that you will make.
For Hong Kong, if your guardian/s are coming from overseas, you need to appoint a guardian for Hong Kong until they arrive.
You should also have a separate Deed of Guardianship to allow the family courts to consider your children separate to your will (probate court) and therefore immediately.
If you haven’t written your own Will, the government has written one for you. What follows is a “typical” pattern of distribution under intestate laws.
While other government rules might vary in some respects, this example should pique your interest as to what your country’s law provides (HK).
Let’s call this Joe Procrastinator’s Will.
My Last Will and Testament (via intestacy)
Being of sound mind and memory. I, Joe Procrastinator, do hereby publish this as my Last Will and Testament:
I give my spouse only HK$500,000 and one-half of my possessions and I give my children the remaining half.
- A)I appoint my spouse as guardian of my children but, as a safeguard, I require that he/she report to the Probate Court each year and render an accounting of how, why and where he/she spent the money necessary for the proper care of my children.
- B)As a further safeguard, I direct my spouse to produce to the Probate Court a Performance Bond to guarantee that he/she exercises proper judgment in the handling, investing and spending of the children’s money.
- C)As a final safeguard, my children shall have the right to demand and receive a complete accounting from their surviving parent of all of his/her financial actions with their money as soon as they reach legal age.
- D)When my children reach 18, they should have full rights to withdraw and spend their share of my estate.
Should my spouse remarry, this second spouse shall be entitled to one-third of everything my spouse possesses. Should my children need some of this share for their support, the second spouse shall not be bound to spend any part of his/her share on my children’s behalf.
- A)The second spouse shall have the sole right to decide who is to get that share, even to the exclusion of my children.
Should my spouse predecease me or die while any of my children are minors, I do not wish to execute my right to nominate the guardian of my children.
- A)Rather than nominating a guardian of my preference, I direct my relatives and friends to get together and select a guardian by mutual agreement.
- B)In the event that they fail to agree on a guardian, I direct the Probate Court to make the selection. If the court wishes, it may appoint a stranger acceptable to it.
Fifth, (applicable to countries that hold death or inheritance taxes)
Under existing tax law, there are certain legitimate avenues open to me to lower death taxes. Since I prefer to have my money used for government purposes rather than for the benefit of my spouse and children, I direct that no effort be made to lower taxes.
In Witness Whereof, I have set to this, my Last Will and Testament, my hand and seal, the _____ day of ________________, 2019.
Most people after reading this would want their own instructions in place!
Estate planning is not a one-time process.
You must constantly review your current plan to ensure it fits your present family situation. Therefore, you should seek professional advice before implementing any estate plan.
However, it does not have to be complicated either. You need to start with a Will, have beneficiary nominations in place (for pensions and life insurance), and consider the benefits of a living trust, either now or over time.
Remember, it’s easy to put off developing a detailed estate plan, but it’s your choice to preserve for your heirs what it took a lifetime to achieve for you.