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Successful together

Dr. Paul Weingarten | SSiS | Singapore | 13.11.2014

Do I need a Will in Singapore?

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Agenda

02 Guardianship and other precautionary measures

01 Will and Intestate Succession?

1.1 General Thoughts

1.2 Inheritance Law in Germany and Singapore

1.3 Examples

1.4 Inheritance Tax

2.1 What will happen without arrangement?

2.2 Guardianship Declaration

2.3 Lasting Power of Attorney and Advance Medical Directive

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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?

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Inheritance Law overview

• 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)

• 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

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Applicable succession laws

Entire estate(Movable / Immovable assets)

citizenship

Immovable assets

location(lex rei sitae)

Movable assets

domicile

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Applicable succession laws

Entire estate(Movable / Immovable assets)

domicile

Entire estate(Movable / Immovable assets)

citizenship

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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)

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Statistics

17%

83%

Yes No

16%

84%

coordinated uncoordinated

• Percentage of Germans who made a Will

• Percentage of inheritance cases that are uncoordinated or evoke conflicts

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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

SIN - Only legitimate and adopted children

GER / CH / AU - Also illegitimate and adopted childrendecedent

spouse

son daughter

grandchild grandchild

brother sister

nephew niece

grandparentsuncle aunt

parents

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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!).

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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.)

• 2 witnesses needed in addition

Contract of inheritance

• Invalid• Only between married couples and registered partnerships

• 2 witnesses needed in addition

Mutual Will

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Recognition of foreign Will in Singapore

• 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

German Will to be used in Singapore to claim estate

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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

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www.legalpreplan.com-544

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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!

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Example 1

Mr Mustermann owns assets in Germanyand Singapore (movable and immovableassets) and returns to Europe to spendhis 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)

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Example 2

Mr and Mrs Müller and their two childrenare German citizens. They moved toSingapore 2 years ago. Their house inGermany is rented out. In Singapore theyhave rented an apartment. Bank accounts,various furniture and fittings as well asother movable assets exists in bothlocations (Germany / Singapore).

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Example 2

Entire estate(Movable / Immovable assets)

German inheritance law

Immovable assets

House is situated in GermanyGerman inheritance law

Movable assets

German law applicable(2 years probably not enough

for domicile)

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Example 3

Family Schmitt has moved to Singapore.The family has a bank account inGermany. In Singapore family Schmitt ownsan apartment in a condominium.Furthermore, various bank accounts wereopened in Singapore. However, they intendto relocate back to Germany within the nextfew years.

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Example 3

Entire estate (Movable / Immovable assets)

German inheritance law

Immovable assets

Apartment is situated in Singapore

Singapore inheritance law

Movable assets

German law applicable(2 years probably not enough

for domicile)

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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 %

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Example 4

Mr Meier moved to Singapore without de-registering his residence/domicile inGermany. 7 years later Mr. Meier passesaway and leaves behind property inSingapore and Germany.

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

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

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Guardianship for the children

• 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

What would happen to a child if both parents pass away?

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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

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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)

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Lasting Power of Attorney (LPA)

http://www.publicguardian.gov.sg/Portals/0/Guides/LPA%20Process_1%20Nov'12.pdf

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Advance Medical Directive (AMD)

• Legal document you sign in advance to inform your doctor that you do not want the use of any life-

sustaining 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

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„Each and every person counts“ – to the Castellers and to us.

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Your contact

Dr. Paul Weingarten

(Partner)

Rödl & Partner

1 Scotts Road#21-10 Shaw CentreSingapore 228208

Tel. +65 6238 6770 Fax +65 6238 6630Emaill: paul.weingarten@roedl.pro

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