Time for resilience, reflection and re-building focus
Over the past few weeks our eyes and ears have been filled with emails, updates and soundbites about COVID-19. The aim of this article is not to add to the noise but instead to offer some thoughts on taking this uncertain time as an opportunity to deal with personal matters.
Although estate planning may not be your first focus at this time, the current circumstances offer a time for reflection. Estate planning should be viewed in a more pragmatic lens. Namely, adequate protection for your future and the future of your family. Charles Russell Speechlys can assist individuals and families in reducing their exposure to the unexpected in these uncertain times.
What you can do
Review any structures
- If you have settled or are interested in any trusts or wealth structures, you should review the basis of the assets owned by the trust/structure. You may wish to review the dispositive provisions, confirm whether there is a protector or other fiduciary appointed (and whether there is a successor) and make sure the trust/structure still reflects your current wishes and the needs of your family. Now may be a good time to check-in with your trustees (whether professionals or lay persons) if you are not frequently in contact, to let them know your thoughts.
- There may be other important issues to consider, for example, family business succession issues. You may wish to consider appointing a reserve or alternate director and what steps you can take to ensure smooth succession without a disruption to the management of the business.
Wills and succession planning
- While we hope this will not be enforced for some time, it is a good time to start thinking about putting in place an estate plan and draft a Wills. This will help avoid ambiguity and lay out clear instructions for distributing assets, guardianship for children and any other instructions. There is a misconception that only the very wealthy need a Will. In the absence of a Will your estate will be distributed in accordance with default rules which may lead to unwanted consequences. These tend to follow a rigid structure and may not reflect, or can even act against, your wishes. Furthermore, there may be a greater tax bill where a tax bill or spouse exemption is not available. The interrelationship between the various succession rules and inheritance or estate tax means that careful Will drafting is required in order to extract the maximum benefit for your family.
- If you already have a Will in place and, if so, take this opportunity to review your current plan to ensure it reflects your overall wishes. You should confirm the executors (and/or trustees) and guardians named in any Will are your still available to act and are still appropriate choices for your plan. A lot may have changed for you since you first signed it which may have affected its validity. Events such as marriages, births, divorces and relocations can impact the effect of a Will.
- For those with assets in a number of countries, an existing Will may fail, in whole or in part, because it conflicts with the law of another country. Unlike England, Switzerland, for example, has forced heirship rules. Many of our clients come to us to discuss steps to defer any forced heirship entitlement such as by way of an inheritance contract.
Lasting Powers of Attorney and Health Care Directives
- You should consider Lasting Powers of Attorney (LPA) and Health Care Directives. These are documents that enable you to name a person or persons, referred to as, your attorney(s), to take decisions on your behalf in the event that you lose capacity and become incapable of making decisions yourself. Many other countries, including the UK and Switzerland, provide LPAs. Without a LPA, if you lose mental capacity, your assets are effectively frozen. No-one would have the clear authority to manage your assets until someone, usually a member of your family, successfully makes a costly and time consuming application to the Court of Protection to act as your deputy. With a signed LPA, and certain formalities completed, your attorneys can immediately act. If you are unsure as to whom to appoint as your attorneys or what powers, provisions or safeguards to include, you should seek specialist legal advice.
- If you already have an LPA or a Health Care Directive, confirm the fiduciaries you have named are still available to act and are still appropriate choices.
How we can help
Charles Russell Speechlys offers integrated English and Swiss law and tax advice through our bilingual lawyers. We are uniquely placed to advise individuals and families moving to and from Switzerland as well as international civil servants working with IGOs. We also advise on all issues relating to the administration of estates and other private client matters.
We appreciate that this is a difficult time for many families. We are making full use of video calling, conference calling and other electronic means of communication to ensure meetings take place virtually. We are here to support you.
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