WILLS & SUCCESSION PLANNING

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Welcome Viberts’ Personal Law Department is one of the Island’s leading providers of wills and probate services. Our team has a wealth of experience and our clients can be confident in the knowledge that we will provide a sensitive and effective service, giving peace of mind. We focus on meeting the needs of Jersey people. People matter to us.

About this wills & succession planning brochure

This brochure is meant to act as guide to understanding how Jersey Law deals with your assets when you pass away, as well as providing you with guidance on the options available to you and your family when it comes to succession planning, including wills, stamp duty, curatorships and executorships.

Because of our ‘hands on’ and tailored approach to each client’s requirements, we are recognised as a leading provider of solutions to a large number of clients who each have individual circumstances that require dedicated support. As a result of this, we recommend that you read the information enclosed as a starting point and then contact us to discuss your circumstances and how we can help you find the right solution.

When it comes to succession planning, being prepared will give you peace of mind, Viberts can help you with this.

If you have any questions, however small, about managing your own or a loved ones’ affairs then please call our personal law team for an initial 30 minute free consultation on:

+44 (0) 1534 888666

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ContentsTo will or not to will 3

Entitlement - where there is no will- movable and immovable estate 4

Entitlement - where there is a will- movable estate 4

Entitlement - where there is a will- immovable estate 5

Dealing with your digital assets 6

Persons domiciled outside Jersey 7

Immovable property situated outside Jersey 7

Joint ownership - two different types 7

Tuteurs and guardianship 8

Signing and witnessing wills 9

Changes to the inheritance law 9

Professional executorship services 10

Testamentary capacity and undue influence 10

On your death 11

Stamp duty and how this may affect your will 11

If you need us 14

To will or not to will?

Nobody likes to think about death, particularly their own. However, making preparations for your death has many advantages. The primary benefit is that you get to decide (within certain parameters set out by Jersey law) who you wish to inherit your assets. If you do not make a will, this does not happen, and the law dictates who will inherit from you in a situation called an intestacy.

The current law does not permit unmarried couples to inherit from each other without having a will, therefore the death of a partner is likely to cause considerable hardship and uncertainty. Uncertainty can also be created if you are the parent of minor children. If you do not make a will, you will have no control over who will look after them should you die whilst they are still young.

The court will appoint someone who you may not have chosen. If you make a will, you can appoint a guardian of your choice to look after your children until they reach the age of majority, which is currently 18.

Dealing with bereavement can be very upsetting. The last thing your loved ones will want to deal with is the administration of your intestacy. This may also be very complicated and therefore they may need to employ professionals to help them and thereby reduce the value of your estate. However, with a will, your family will have your directions to follow as to how to deal with your affairs.

In order to avoid an intestacy in Jersey it may be necessary to make two wills, one for dealing with immovable property and one for dealing with movable property. A will of Jersey immovable property deals with land and everything built on it, leases for over 9 years, flying freehold property and the benefit of certain mortgages. A will of movable property deals with all other assets such as jewellery, furniture, bank accounts, shares (including those that relate to share transfer properties) and investments.

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Entitlement - where there is no will - movable and

immovable estateIf you are domiciled in Jersey (a person’s domicile is essentially the place which they regard as home) and you die without a will (intestate) leaving a surviving hus-band or wife and descendants the surviving spouse is entitled to the household effects, the first £30,000 of movable estate and half of the remainder. The de-scendants (children firstly) take the other half. Please note that the term “spouse” wherever it is used in this brochure includes a civil partner, and the term “married” refers also to “having entered into a civil partnership”.

If there are no children, Jersey immovable property passes on intestacy to your spouse. If you do have children your spouse is entitled to an equal share of the property with each surviving child. If the property is shared amongst your spouse and children, your spouse is however also entitled to the life enjoyment (usufruit) of the whole of the matrimonial home. If your spouse has pre-deceased you, your immovable property will be inherited by your children in equal shares.

Entitlement - where there is a will - movable estateIf you are domiciled in Jersey, unlike, say, the position under English law, certain forced heirship rights (‘légitime’) are given to your spouse and your children (and failing them your grandchildren) over your movable estate, which cannot be re- moved even if you make a will that ignores them. The surviving spouse and issue can claim against an estate if they have not been given their “one third share” (where there is spouse and issue) or their “two thirds share” (where there is either spouse or issue). The remaining third is freely disposable by will. Claims have to be made within a year and a day of the issue of the Grant of Probate of your will of movable estate to your executor. If no claims are made within that period effect is given to the terms of your will, even if it ignores the forced heirship rights.

A will dealing with your movable property should appoint someone to be your executor. This is the person who entitled to apply to the court for a Grant of Probate, which is the permission of the court to deal with your estate in accord-ance with the terms of your will, i.e. collecting assets, paying debts and expenses and distributing legacies and bequests to the beneficiaries. If you do not do this, the court will appoint someone to deal with the task. You may appoint a family member or a close friend, or a professional executor (i.e. a company dealing with the administration of estates). Viberts Executors Limited is our in-house executor company.

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Entitlement - where there is a will - immovable estateUnlike movable property, forced heirship rights “légitime” do not apply to immovable property and you may leave your immovable property to whomever you wish, r regardless of whether you are married or have children. However, if you are married, or in a civil partnership, your spouse/civil partner will acquire a life enjoyment over one third of your property, known as the right of ‘dower’ upon your death.

Status of TestatorLegitime Claim (claimed when

there is a Will)Intestacy

Unmarried without children Estate freely disposable Heirs at law (siblings first) will inherit

Heirs at law (siblings first) will inherit Spouse/civil partner and children

Surviving spouse/civil partner can claim the household effects and 1/3 of the net movable estate and the children can claim one third also

Surviving spouse/civil partner will receive the household effects, other movable estate to the value of £30k and half of the remainder and the

children take the other half

Spouse/civil partner but no childrenSurviving spouse/civil partner can

claim the household effects and 2/3 of the net movable estate

Surviving spouse/civil partner will inherit all

No spouse/civil partner but childrenChildren can claim 2/3 of the net

movable estateChildren will inherit all

No spouse/civil partner or children Estate freely disposable Heirs at law (siblings first) will inherit

Dealing with your digital assets

Today, most of us enjoy the convenience of online banking and buying and selling online. We also communicate across many different forums, be it by e-mail, Facebook, Linked-In or Twitter.

As a form of property, digital assets can be transferred or bequeathed to those who you wish to receive them. However, unlike physical property, digital assets are intangible and invisible. The rights of ownership, control and access of digital assets are intertwined with complexities of privacy and security protection as laid out in various service provider policies. Since there is little inheritance law guidance to help negotiate these complexities, it is recommended that people leave clear instructions about what should happen to their digital legacy after their death. Not doing so could mean that important information or sentimental material is never recovered. It should not be assumed that your loved ones will know where to look or will have the legal authority to deal with your digital legacy.

Dividing such assets into ‘digital assets’ and your ‘digital presence’ may greatly assist your executor in knowing how to deal with your digital legacy and give them the authority to deal with your accounts with the assistance of the service provider. Digital assets include your digital music, films and books as well as on-line bank accounts and investments. It is important however to be aware for some digital content, you only pay a licence to use it during your lifetime.

Digital presence includes any social media, e-mail, Twitter or

other social interaction accounts.

Anyone with digital assets should make a list of what and where they are

in a personal asset register in order that those dealing with your estate will be able

to locate and access those assets. This is preferable to leaving a list of passwords

or pin numbers as an Executor accessing your accounts in this way could be committing

a criminal offence or could be in breach of the terms of the service provider. It is enough to leave

a list of online accounts and ensure that this list is kept up to date.

In the case of digital presence, many people want to be able to shut down the online accounts of loved ones

after their death. If you have a digital presence, it would be worthwhile you reviewing the policies of each of your

providers to establish what their terms and conditions are in the event of your death and if there are any steps that you

need to take to preserve your accounts for your loved ones in the event of your death. If you have left clear instructions, it will be

much easier for your Executor to deal with your digital assets and closed down or transfer your accounts.

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Persons domiciled outside Jersey If you are domiciled outside Jersey the law of your place of domicile will govern the form and content of your will of movable property or its fate upon intestacy.

Because the question of domicile is so subjective, it can be rather difficult to establish. If you are uncertain as to the place of your domicile it is important that you take legal advice.

Immovable property situated outside JerseyIf you own immovable property outside Jersey the law of the country where the property is situated will apply to that property rather than the law of your domicile. Most, but not all, EU states allow the holders of British passports issued in Jersey to subject their immovable property located within their borders to Jersey’s inheritance laws. If that option is of interest to you we would be happy to guide you through the steps to be followed.

Joint OwnershipThere are two forms of joint ownership of property:

Joint tenantsThe first is known as a “joint tenancy”. This means that following the death of one of the “joint tenants” the property automatically rests in the ownership of the survivor. The property can then and only then be left by will. In order to sell a property held in this form of ownership, all parties must agree to and participate in the sale. One party cannot sell his share, as in law the property is not divided into shares by this form of ownership.

Tenants in commonThe second form is known as a “tenancy in common”. Each joint owner owns an undivided share of the property. This share can be left to another by will. One or more of the owners may sell their share without the participation, knowledge or agreement of the other owners. Should one owner die, the property is not automatically transferred to the survivors. A property can be divided by this method into various shares e.g. half and half, two-thirds, one third etc.

When a property is in joint ownership, it is possible for any co-owner to compel the other co- owner or co-owners to bring the co-ownership to an end. The enforced sale of the property is brought about by “action en licitation”, in which the court orders that the property be sold by auction, at which any member of the public including a co-owner is free to bid. The court may authorise the Viscount to execute the order and join in passing a contract for the sale of the property on behalf of an unwilling co-owner.

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Tuteurs and guardianship Jersey has special rules relating to minors and the ownership of property. If a minor inherits or receives immovable property, or movable property (such as money, shares, cars etc.) which have a value of £25,000 or more then a Tuteur is automatically appointed.

A Tuteur is appointed by the Jersey Royal Court to manage the property of a minor and may be any of the following: a parent, relative or guardian of the minor, a creditor of the minor, the Jersey Attorney General or any other person with leave of the Jersey Court.

The Tutuer is responsible solely for the administration of the minor’s property and not the minor’s care or well-being, which is the role of a minor’s appointed Guardian.

The duties of the Tuteur are governed by the Children’s Property and Tuteurs (Jersey) Law 2016 and the Tutuer is required to prepare an initial inventory and to thereafter file annual accounts with the Court. The Court has a supervisory role over the administration of the minor’s property and is empowered to give directions at any time regarding the administration carried out by the Tuteur. Permission of the Court is also required for the sale of any property belonging to the minor.

It is an offence for anyone other than the Tuteur to deal with the minor’s property, or to administer the minor’s property where a Tuteur has not yet been appointed but is required.

For the purposes of planning for the future and making a Will, a Testator may name the individual whom they wish to be appointed as the Tutuer in their Will. This provisions is not however legally binding as the Jersey Court ultimately had discretion as to whom they deem the most appropriate person to appoint as Tutuer. It will however give the Court an indication as to the Testator’s wishes.

The Testator may also name an individual whom they wish to be appointed as the guardian of their minor children in their Will. As mentioned above, the role of the Guardian is separate to that of the Tuteur and the Guardian is responsible for the day to day care and welfare of the child. Only one Guardian may be appointed by the Court at any one time however it is possible to name an alternate Guardian in your Will to cover the possibility that the first named Guardian is not able to take on the role. It is also possible to name the same person in a Will to be both the Guardian and Tuteur.

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Signing and witnessing willsAs it is essential that wills are in correct form and properly dated and witnessed you should always consult a lawyer to advise on and prepare your wills. There are no pre-printed will forms suitable for use in Jersey. They are printed for use in England where different laws apply.

Once you have made a will you may change it as often as you wish. You can even cancel the entire document if you so decide. We do however advise that wills should be reviewed every five years to ensure they continue to meet your wishes, or sooner if your own circumstances change significantly (e.g. you become married, divorced, have a baby or become a grandparent).

Changes to the inheritance law

Illegitimate children of the father have succession rights in their father’s estate, this changes the provisions of the former law as a result of an Act of the States Assembly. Previously such children could only succeed to the estate of their mother.

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Professional executorship services

In some cases the executor appointed in a will or the person entitled to administer the estate may not feel able or wish to do so. Other situations may arise where the executor appointed in the will has died or the deceased’s affairs are complex. In such cases Viberts is pleased to offer its professional executorship services. Viberts Executors Limited, our in-house executor company, has a wealth of experience in providing such services. By appointing Viberts Executors Limited you can be assured that the estate will be dealt with in a cost effective, timely and professional manner by our experts, strictly in accordance with the wishes of the deceased or the rules on intestacy, as

appropriate. Viberts Personal Law team is also pleased to provide legal advice to those acting in the capacity of executor where there is disagreement, or complex issues arise.

In Jersey it is necessary for a probate application to be made in person and therefore the named executor in a will must either travel to Jersey to make the probate application in

person, or sign a power of attorney giving a local lawyer in Jersey the power to make the application in their place. This avoids the expense and inconvenience of travelling to

Jersey which could prove costly to the estate.

If a power of attorney is signed in favour of Viberts Executors Limited then the probate application will be made by Viberts Executors Limited on behalf of the named

executor or administrator and Viberts Executors Limited will be appointed on the Jersey Grant of Probate as the Attorney Executor. This gives Viberts Executors

Limited the power to administer the estate in Jersey.

Testamentary capacity and undue influence

Where the deceased made a will issues may arise as to whether he or she had the legal capacity to deal with their property at

the time it was made. Indeed, there may be a concern that duress or undue influence was placed on the deceased to

favour certain people in their will who would not otherwise have expected to inherit so much. Conversely some wills

ignore the rights of persons to whom the testator, whilst alive, gave legally binding assurances as to what they

would inherit. In all these cases Viberts can advise whether a remedy exists and how to set about

securing it.

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On your death

Wills are not effective until they have been registered in the Public Registry in the case of immovable wills or a Grant of Probate has been obtained in the case of a will of movable estate. When taking these steps a revenue stamp is payable to the States of Jersey and the sums involved can be significant. Viberts can assist with the necessary arrangements for this expenditure and can advise as to whether any special exemptions may be applied.

Stamp Duty and how this may affect your will

Where a Jersey domiciled testator has assets in the UK those assets may be subject to UK inheritance tax on death. There are however certain exceptions. If you have assets situated in the UK then you need to take specialist tax advice. Taking account of the current threshold of £325,000 and certain exemptions, UK Inheritance Tax is generally 40%. In Jersey there is a stamp duty which may be payable by those who inherit our assets on our death. Jersey stamp duties are considerably lower than UK Inheritance Tax.

Jersey law categorises assets into movable and immovable, and different stamp duty regimes apply to each. Movable assets include jewellery, furniture, bank accounts, shares (including those that relate to share transfer properties) and investments.

For the purpose of calculating stamp duty on your net movable assets at death, the value of the movable assets is rounded up to the nearest £10,000. The stamp duty is calculated at the rate of 0.5% of the value up to £10,000 and 0.75% thereafter, (plus £80 in the case of professional applications for probate). Stamp duty is paid when the executor or administrator of the estate applies for probate or letters of administration.

Immovable assets include land and everything built on it, leases for over 9 years, flying freehold property and the benefit of certain mortgages. Stamp duty is payable on the registration of a will of immovable estate in the Public Registry and is calculated on a sliding scale, based upon the market value of the property, as at the date of death. The calculation is essentially the same as the stamp duty payable when buying immovable property, and is as follows:

Does not exceed £50,000 0.5% with minimum fee of £12

Exceeds £50,000 but does not exceed £300,000 £250 + 1.5% of the value in excess of £50,000

Exceeds £300,000 but does not exceed £500,000 £4,000 + 2% of the value in excess of £300,000

Exceeds £500,000 but does not exceed £700,000 £8,000 + 2.5% of the value in excess of £500,000

Exceeds £700,000 but does not exceed £1,000,000 £13,000 + 3% of the value in excess of £700,000

Exceeds £1,000,000 but does not exceed £1,500,000 £22,000 + 4% of the value in excess of £1,000,000

Exceeds £1,500,000 but does not exceed £2,000,000 £42,000 +5% of the value in excess of £1,500,000

Exceeds £2,000,000 but does not exceed £3,000,000 £67,000 +6% of the value in excess of £2,000,000

Exceeds £3,000,000 £127,000 + 7% of the value in excess of £3,000,000

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An additional charge of £80 is payable in the case of all professional applications.

Certain exemptions apply to the stamp duty payable on immovable property where the property in question is the matrimonial home (not owned jointly), or where the will

leaves the immovable property to those who would have inherited had there been no will (an intestacy), in the same shares as they would have inherited on an intestacy.

For example, no stamp duty is payable in the case of widow, widower or single mother, leaving their entire immovable property to their children on death. However, if that parent

left individual properties to individual children in their will, stamp duty would be payable. Furthermore, there would be no benefit to transferring the properties in question to the children prior to death, as the rate of stamp duty would apply to such transactions.

Not unusually, the situation arises where those who inherit, especially under a will of immovable estate, have insufficient funds immediately available to pay the stamp duty for the registration of the will.

A legitimate way of avoiding stamp duty on death is to hold assets jointly for the survivor with another. It is not unusual for couples to hold assets in this way. Stamp duty would only be a consideration on the death of the last joint owner. There are however some instances where this is not possible, for example with regard to ownership of motor vehicles and certain investments, or indeed desirable, due to prevailing circumstances, including the nature of the relationship between parties.

For all the reasons set out above, it is important that consideration is given to the impact your wishes as expressed in your wills, may have on the amount of stamp duty payable on your death. The reality is that with some fairly straightforward estate planning, the saving on stamp duty can be considerable, leaving your loved ones financially better off. Viberts offer expertise in this area and would be delighted to assist you.

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If you need usIf you have any questions, however small, about managing your own or a loved ones’ affairs then please call our personal law team for a free initial consultation.

We place great importance on the establishment of a good relationship between client and lawyer. We will be here when you need us. Contact us:

+44 (0) 1534 888666

personal@viberts.com

www.viberts.com

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Contact us:

Viberts Viberts House, PO Box 737, Don Street, St. Helier, Jersey JE4 8ZQ

+44 (0) 1534 888666 +44 (0) 1534 888555

personal@viberts.com

Visit us:

www.viberts.com

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