A) Tax Relevance Of Cross-Border Estate Planning
Expats and their families often have accumulated substantial assets and wealth.
In order to preserve this wealth for the next generation and to prevent that after already paid Income Tax and Wealth Tax there will also be a substantial Inheritance Tax, it seems advisable to in time have an estate planning which prevents this excessive cumulation of taxation.
If you might think that this is not that relevant for expats, we will give you an example: USA Transfer Tax Law applies no matter where a U.S. citizen lives, gifts property or dies. Estate tax may be owed on assets transferred to others within a certain period before passing away. The USA is not the only country with such a ‘broad reach’.
Especially if your family has a cross border situation, it seems advisable to be prepared.
B) All Aspects
I. Estate planning has two key elements:
- Matrimonial Property Law;
- Inheritance & Gift Tax Law.
II. Estate plans are unique to every personal situation but will i.e. include:
- Creating an expat will;
- Minimising taxes by setting up the appropriate financial structures;
- Guardianship of living dependants;
- Naming of an executor of your estate;
- Creating or updating beneficiaries on your financial plans;
- Pre-organising and potentially paying for your funeral arrangements;
- Setting up a power of attorney to direct other assets and investments.
C) International Legal/Tax Issues
I. Stern Regime/Exemptions
Due to the international context there are often several countries involved. Which adds to complexity and makes a tailer-made estate planning all the more important.
In order to determine the applicable civil law, you have to look at the International Civil Law of the relevant countries. Which can be quite difficult as for example certain personal choices in one country are not always accepted as valid in another country.
If it concerns Member States of the EU, the EU Inheritance Regulation of 2015 is relevant. Even though it only addresses the civil law and not the tax law issues.
Regarding Inheritance Tax national regimes can be quite different. The UK and Dutch system are quite stern. Sweden and Portugal have no such taxes and the USA has high capital exemptions.
II. Civil Law/Common Law
The USA and UK common law based legislation leaves more interpretation to the Courts. Most European, Latin-American and African law is based on civil law which laws are more detailed and leave less interpretative influence to the Courts.
Regarding estate planning flexibility common law countries give more discretion to the individual to create a personal scheme of wealth distribution. Whereas civil law countries tend to follow a succession regime also known as hereditary reserve with less flexibility.
III. Double Tax Treaties
Double Tax Estate/Gift Treaties have relevant roles in deciding the transfer tax consequences of assets held within the cross-border estate. They can provide a substantial reduction in the estate taxes by mitigating double taxation.
The treaty will control which treaty country can implement transfer taxes by either stating:
- in which country is the decedent/donor’s domicile for transfer tax purposes.
- in which country the property is deemed to be located.
These treaties affect estate planning substantially. It is relevant to know that the filer must specify any specific benefit under the treaty that is being claimed in the tax filings. Otherwise the presumed benefit is lost.
IV. Foreign Tax Credits
We see often that there is no Double Tax Treaty between the countries involved. Which increases the potential for double taxation substantially.
Foreign transfer tax credits on national tax may still provide (some) relief from double taxation. How this should be implemented depends on the related national tax legislation.
D) Procedure Tax Exposure Minimization
This first step regarding tax exposure minimization is to accurately catalog all existing and future assets and claims:
- Pension and life insurance claims;
- Savings and investments;
- Business ownership;
- Real estate value and rental income;
- Art and similar valuable collectibles.
The second step is to analyze which countries are in play and attractive regarding:
- Type and amount of possibly existing tax exemptions;
- Tax rates;
- Possibly existing Double Tax Treaties which prevent or mitigate double taxation;
- If there is no Double Tax Treaty check how foreign tax credits should be implemented.
E) Estate Planning Memorandum
In our English Estate Planning Memorandum we summarize all facts, your wishes, all (inter)national legal/tax/financial/personal options and our recommendations. If required we will initiate and maintain contact with specialists and authorities in other countries.
It will be all you need in order to make a well-considered decision for your family.
After which your decision can be formalized in the required correct legal manner.