private client services
Trust & Estate Planning
A trust is an entity created to hold assets (or property) managed by a designated individual or a company (known as the trustee) according to instructions of an individual or company (known as the settlor) typically set out in a trust deed. Normally, the trust is created by the settlor’s signed declaration instructing the trustee regarding ownership, investment and distribution of assets designated to be owned under the trust. The purposes of a trust may include:
- Distributing assets to intended recipients;
- Minimizing risks of complicated and litigious estate proceedings;
- Protecting assets from the settlor’s creditors;
- Separating ownership of assets among or between individuals or companies;
- Maintain privacy in ownership of assets.
Weir & Associates’ private client team advises clients as to the advantages of creating a trust(s) as an adjunct consideration along with the completion of a will for better management and distribution of property. A trust assists beneficiaries by ensuring assets owned by the trust are protected from others and are properly invested until distribution. Also, trusts can seek to minimize taxes payable both through current tax years as well as upon death so beneficiaries obtain maximum financial benefits upon distribution of assets.
Another common purpose of a trust is to maximize protection of assets from being seized to satisfy a judgment obtained by a creditor. Weir & Associates is well-versed in such asset protection strategies and also provide our clients with numerous tax saving devices. We advise on various kinds of trusts including:
- Asset protection trusts;
- Charitable trusts;
- Inter vivos trusts;
- Discretionary trusts;
- Educational trusts.
We also advise on trusts and estate planning matters involving parties and/or assets located in foreign jurisdictions.
Upon an individual’s death, his or her assets (known as the estate) must be processed through probate. Essentially, probate is the management and/or distribution of the estate according to the deceased’s will (if one exists, if not under the applicable probate rules) in the accordance with the laws of Hong Kong.
Without a valid proven will, it is assumed the deceased died without a will. The estate is then managed and/or distributed by an administrator appointed by the court. The court usually appoints an administrator who has applied for appointment, usually a beneficiary of the estate or family member of the deceased.
Where a valid will exists, a solicitor must confirm whether the deceased has appointed someone to act as executor of the estate. If an executor is appointed, the individual must be advised and should have the opportunity to decline the appointment. An individual agreeing to the appointment must decide whether to act personally or to appoint a solicitor to act on their behalf. ￼
Our solicitors are well-versed in the rules of Probate and understand the important questions that must be answered in estate administration, such as:
- Has the death been registered?
- Has a death certificate been obtained?
- Has the funeral been arranged?
- Has the funeral account been received?
- If the deceased has dependant family, do they have sufficient financial resources for their immediate needs?
- Do any mortgage payments need to be kept up or does rent need to be paid?
- Do other debts need to be paid immediately?
We advise all parties in possession of papers relating to the estate, such as bank statements, business accounts, receipts for medical expenses, income tax returns, to provide these papers to the Executor, as they are essential to analyzing matters of probate.
Preparing a Will
A will is a private legal document setting out how you would like to give or manage your assets and, where appropriate, give guidance for the guardianship of your children in the event of your death. Without a will, property and money is distributed to family members in shares as described under laws of Hong Kong. A will can provide the following instructions, including (not limited to):
- Directing to whom assets are given, including specific amounts of money (subject to legal restrictions);
- Appointing guardians to take care of your children;
- Setting up trusts for your children and spouse;
- Continuing or discontinuing a business;
- Directing your funeral;
- Donating money to charities;
- Donating your organs for transplant;
- Applying special provisions where your death is the result of a fatal accident.
Weir & Associates can assist in drafting a will which clearly sets out your intentions and instructions in the event of death. We encourage clients to review their wills periodically to determine whether amendments are necessary to reflect changes in their lives.
Hong Kong is not considered a “tax haven” and therefore enjoys a deserved reputation for business and financial legitimacy. Jurisdictions which attempt to hide assets through private registries and obstructive procedures are justifiably targeted by foreign authorities and have little relevance to legitimate pension planning and management. Hong Kong, conversely, provides an established, straightforward, low-tax system that attracts legitimate and transparent pension planning for both international and local clients.
Hong Kong’s Occupation Retirement Scheme Ordinance (ORSO) is a government regulated retirement regime available to residents and non-residents of Hong Kong. The ORSO makes it possible for individuals to establish a retirement plan that has the result that no estate duty, no wealth tax, no capital gains tax, no withholding tax, no VAT, and no annual net income tax is attributed to the pension member. These significant positive tax implications are derived from Hong Kong’s premium on low taxes, a free market and an almost unfettered capacity for investment.
The ORSO maximizes the return on members’ wealth by avoiding double-taxation regulations, overlapping taxes, and unnecessary administrative and regulatory fees. Importantly, the regime offers flexibility and freedom of investment by including the widest range of investment class and asset location. In addition, in the unfortunate event of the pension member’s death, the estate is effectively distributed to desired recipients with ultimate tax efficiency. These savings on estate succession, combined with the greater possibilities for investment, make the ORSO a unique retirement essential.
Weir & Associates encourages its clients to take advantage of Hong Kong’s ORSO. There may be little that is more frustrating than losing large parts of an estate to the government for the sole reasons of mismanagement, poor planning, and a misunderstanding of tax law. The options under the ORSO make it possible to efficiently manage your financial estate and avoid many of the common crucial mistakes made in everyday pension planning.
Weir & Associates is a Hong Kong law firm
geared to provide comprehensive legal solutions through access to a wide range of resources. For further information, please contact us by telephone, email or fax.
Solicitors and Notaries
6th Floor, Wings Building
110 Queen’s Road Central,
Central, Hong Kong
Tel: (852) 2526 1767
Fax: (852) 2868 3568