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International Estate Planning in a World of Many Laws

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International Estate Planning in a World of Many Laws PHILLIPS NIZER LLP INTERNATIONAL ESTATE PLANNING IN A WORLD OF MANY LAWS PRESENTATION FOR THE TRUSTS AND ESTATES SECTION OF THE NEW YORK STATE BAR ASSOCIATION January 16, 2019 Michael W. Galligan Partner, Phillips Nizer LLP And Sean Weissbart Counsel, Morris & McVeigh LLP 1 PHILLIPS NIZER LLP CONTENTS I. “A WORLD OF MANY LAWS” II. CHOICE AND CONFLICTS OF LAW FOR DECEDENTS’ ESTATES IN NEW YORK III. SCENARIOS IV. TAKEAWAYS ABOUT DRAFTING WILLS AND OTHER ADVICE 2 1 PHILLIPS NIZER LLP I A WORLD OF MANY LAWS 3 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT A. DISTINCTIVE FEATURES OF U.S. PROPERTY LAW • SEPARATE PROPERTY (IN MAJORITY OF U.S. JURISDICTIONS) • FREEDOM OF TESTATION (SUBJECT TO SOME PROTECTION FOR SURVIVING SPOUSE) • LIMITED LIABILITY FOR DECEDENT DEBTS • FLEXIBLE OPTIONS FOR TRUSTS • SEVERAL OPTIONS FOR HOLDING ENTITIES OTHER THAN TRUSTS 4 2 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT B. DISTINCTIVE FEATURES OF U.S. CHOICE OF LAW RULES • “SCISSION”: DISTINCTION BETWEEN REAL AND MOVEABLE PROPERTY • DOMICILE FOR PERSONAL PROPERTY; SITUS FOR REAL PROPERTY • INCLINATION NOT TO RECEIVE “RENVOI” (THOUGH NOT NEW YORK) • ALTERNATIVE FOCUS ON “PARAMOUNT INTEREST” 5 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT C. DISCORDANCE BETWEEN U.S. PROPERTY LAW AND NON-U.S. PROPERTY LAW IN GENERAL • SEPARATE PROPERTY VS. COMMUNITY PROPERTY • TESTAMENTARY FREEDOM VS. MANDATORY INHERITANCE • WILL AS INVIOLABLE VS. WILL AS AMENDABLE • LIMITED LIABILITY VS. UNLIMITED LIABILITY • ESTATE ADMINISTRATION VS. SUCCESSION • “FUTURE ESTATES” VS. OWNERSHIP • TRUSTS VS. NO TRUSTS 6 3 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT D.DISCORDANCE ABOUT MATRIMONIAL PROPERTY: COMMUNITY PROPERTY JURISDICTIONS • MANY CONTINENTAL EUROPEAN COUNTRIES • ISRAEL • MOST OF LATIN AMERICA (CENTRAL & SOUTH) • PHILIPPINES** • CHINA •TAIWAN • SOUTH AFRICA • USA: ARIZONA, CALIFORNIA, IDAHO, LOUISIANA, NEVADA, NEW MEXICO, TEXAS, WASHINGTON, WISCONSIN * For Belgium, Sweden, Switzerland, U.S. citizen spouse must have resided there at time of marriage or acquisition of property. For Denmark, male spouse must have resided in Denmark at time of marriage. ** Only if at least one spouse is Philippine citizen. 7 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT SEPARATE PROPERTY REGIMES •AUSTRIA •AUSTRALIA • CANADA* •FINLAND •GERMANY* • INDIA • IRELAND • ISLAMIC COUNTRIES • JAPAN •KOREA • NEW ZEALAND* • UKRAINE • UNITED KINGDOM • USA: MAJORITY OF STATES * Subject to possible adjustments on death of first spouse. 8 4 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT CHOICE OF LAW FOR MARITAL REGIMES • JURISDICTION WHERE MARRIAGE WAS CELEBRATED • JURISDICTION OF FIRST HABITUAL RESIDENCE • JURISDICTION OF CURRENT OR LAST HABITUAL RESIDENCE • JURISDICTION OF RESIDENCE OF SPOUSES WHEN THE PROPERTY WAS ACQUIRED • NEW EU DIRECTIVE (JANUARY 2019) ON CHOICE OF LAW FOR MARITAL PROPERTY REGIME, FAVORING LAW OF FIRST MARITAL HABITUAL RESIDENCE, WITH ALTERNATIVE ELECTIONS BASED ON NATIONALITY AND OTHER RESIDENCE OPTIONS. 9 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT E. DISCORDANCE OF LAW ABOUT INHERITANCE: MANDATORY INHERITANCE JURISDICTIONS • CONTINENTAL EUROPE • LATIN AMERICA (CENTRAL & SOUTH) • JAPAN • PHILIPPINES •KOREA •TAIWAN • USA: LOUISIANA • ISLAMIC COUNTRIES • INDIA (ISLAMIC) 10 5 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT TESTAMENTARY FREEDOM JURISDICTIONS;* •AUSTRALIA • CANADA (INCLUDING QUEBEC) • CHINA • INDIA (NON-ISLAMIC) • ISRAEL • NEW ZEALAND • SOUTH AFRICA • UNITED KINGDOM • USA: 49 STATES * May include protections for surviving spouses. 11 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT POST-DEATH TREATMENT OF WILLS • MOST COMMON LAW JURISDICTIONS OUTSIDE THE USA AS WELL AS CHINA PERMIT POST-DEATH WILL MODIFICATIONS ON A LIMITED BASIS • SOME COMMON LAW JURISDICTIONS ALLOW VARIATIONS TO WILLS BY BENEFICIARIES THAT ARE MORE LIBERAL THAN U.S. RENUNCIATION/ DISCLAIMER PROCEDURES • IRELAND PROTECTS SPOUSES AND PERMITS CHILDREN (ADULTS AS WELL AS MINORS) TO MAKE APPLICATIONS FOR EQUITABLE ADJUSTMENT 12 6 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT F. DISCORDANCE ABOUT THE LIABILITY OF HEIRS FOR DECEDENT DEBTS • MOST CIVIL LAW JURISDICTIONS THAT HAVE MANDATORY INHERITANCE RULES ALSO PROVIDE THAT, ABSENT AN EXPRESS DECLARATION TO THE CONTRARY, HEIRS ASSUME THE DEBTS OF THEIR DECEDENT, EVEN IF THE DEBTS EXCEED THE VALUE OF THE INHERITANCE. • MOST COMMON LAW JURISDICTIONS LIMIT LIABILITY OF HEIRS AND DECEDENT’S DEBTS TO DECEDENT’S ASSETS AT TIME OF DEATH (SUBJECT TO FRAUDULENT CONVEYANCE RULES). 13 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT G. DISCORDANCE BETWEEN COMMON LAW ADMINISTRATION AND CIVIL LAW SUCCESSION • IN MANY CIVIL LAW COUNTRIES, SUCH AS FRANCE, ITALY AND SPAIN, HEIRS SUCCEED TO THEIR DECEDENT’S PROPERTY AT DEATH WITHOUT THE INTERVENTION OF ANY COURT. • IN SOME CIVIL LAW COUNTRIES, SUCH AS GERMANY AND SWITZERLAND, ASSISTANCE OF A COURT AUTHORITY MAY BE REQUIRED BUT THE ROLE OF AN EXECUTOR, IF ANY, IS VERY CIRCUMSCRIBED. • IN COMMON LAW COUNTRIES, WILLS MUST BE SUBMITTED TO COURT FOR PROBATE, EXECUTOR TAKES TITLE TO PROPERTY AND, IN MOST CASES, TESTAMENTARY HEIRS TAKE TITLE ONLY UPON DISTRIBUTION. 14 7 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT H. DISCORDANCE BETWEEN COMMON LAW FUTURE ESTATES AND CIVIL LAW “BARE” OWNERSHIP • UNDER THE COMMON LAW, A LEGAL LIFE ESTATE IS A FORM OF OWNERSHIP ALTHOUGH THE LIFE TENANT HAS CERTAIN RESPONSIBILITIES TO THIS REMAINDER PERSONS FOR MAINTENANCE OF THE PROPERTY; • UNDER THE CIVIL LAW, USUFRUCT CARRIES CERTAIN RIGHTS TO INCOME AND PROFITS OF THE PROPERTY BUT DOES NOT CONSTITUTE OWNERSHIP INTEREST AND MAY REQUIRE A HIGHER LEVEL OF CARE TO PROTECT THE RIGHTS OF THE “BARE” OWNERS. 15 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT I. DISCORDANCE BETWEEN U.S. CHOICE OF LAW AND NON-U.S. CHOICE OF LAW FOR INHERITANCE AND RELATED MATTERS • NATIONALITY FOR ALL PROPERTY: JAPAN, TAIWAN • RESIDENCE FOR ALL PROPERTY: MOST COUNTRIES OF THE EUROPEAN UNION AND SWITZERLAND • DOMICILE FOR ALL PROPERTY: CHILE, UNITED ARAB EMIRATES • SITUS FOR IMMOVEABLE PROPERTY AND DOMICILE/RESIDENCE FOR MOVEABLES: CANADA, COSTA RICA, ISRAEL, RUSSIA, SOUTH AFRICA • SITUS FOR REAL PROPERTY AND DOMICILE FOR PERSONAL PROPERTY: AUSTRALIA, CANADA, IRELAND, NEW ZEALAND, UNITED KINGDOM, UNITED STATES • SITUS FOR REAL PROPERTY AND SHARES OF COMPANY AND DOMICILE FOR OTHER MOVEABLES: CHINA, UKRAINE • SITUS FOR REAL PROPERTY AND NATIONALITY FOR ALL OTHER PROPERTY: MONACO 16 8 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT DISCORDANCE BETWEEN U.S. CHOICE OF LAW AND NON-U.S. CHOICE OF LAW NEW DEVELOPMENT AS OF AUGUST 2015: • EU DIRECTIVE MAKES THE LAW OF A DECENDENT’S HABITUAL RESIDENCE AT DEATH THE GOVERNING LAW RE SUCCESSION ISSUES (WITH RENVOI). • EU DIRECTIVE ESTABLISHES THE RIGHT TO CHOOSE THE LAW OF ONE’S NATIONALITY TO GOVERN ONE’S ENTIRE ESTATE (REAL AND PERSONAL PROPERTY) AND MOST RELATED ISSUES (NO RENVOI). 17 PHILLIPS NIZER LLP THE INTERNATIONAL CONTEXT J. DISCORDANCE ABOUT TRUSTS • TRUSTS PROVIDED FOR IN ARGENTINA, AUSTRALIA, CANADA, CHINA, COSTA RICA, INDIA, IRELAND, ISRAEL, JAPAN, KOREA, LICHTENSTEIN, NEW ZEALAND, PANAMA, SOUTH AFRICA, UNITED KINGDOM, USA • TRUSTS NOT PROVIDED FOR IN MOST CONTINENTAL EUROPEAN AND MOST OTHER LATIN AMERICAN COUNTRIES 18 9 PHILLIPS NIZER LLP TRUSTS RECOGNIZED UNDER THE HAGUE CONVENTION IN THESE CIVIL LAW COUNTRIES • CYPRUS •ITALY • LIECHTENSTEIN • LUXEMBOURG •MALTA •MONACO • NETHERLANDS • PANAMA • SAN MARINO • SWITZERLAND 19 PHILLIPS NIZER LLP II CHOICE AND CONFLICTS OF LAW FOR DECEDENTS’ ESTATES IN NEW YORK 20 10 PHILLIPS NIZER LLP A. DETERMINATION OF APPLICABLE LAW FOR REAL PROPERTY (NY EPTL SECTION 3-5.1(b)(1)) 1. AREAS OF LAW AFFECTED: a. FORMAL VALIDITY. b. INTRINSIC VALIDITY (SUBSTANTIVE RULES DETERMINING “THE LEGALITY OF A TESTAMENTARY DISPOSITION, INCLUDING THE GENERAL CAPACITY OF THE TESTATOR”). c. EFFECT (“LEGAL CONSEQUENCES ATTRIBUTED TO A VALID TESTAMENTARY DISPOSITION”). 21 PHILLIPS NIZER LLP d. INTERPRETATION (“DETERMINING THE MEANING OF LANGUAGE EMPLOYED BY TESTATOR WHERE INTENTION IS NOT OTHERWISE ASCERTAINABLE.” e. REVOCATION OR ALTERATION OF A TESTAMENTARY DISPOSITION OF PROPERTY. f. MANNER IN WHICH PROPERTY DESCENDS WHEN NOT DISPOSED OF BY WILL. 22 11 PHILLIPS NIZER LLP 2. NEW YORK LAW DEFERS, FOR ALL THE ABOVEMENTIONED ISSUES, TO THE LAW (NOT LIMITED TO LOCAL LAW) WHERE THE REAL PROPERTY IS SITUATED. 3. DETERMINATION OF WHETHER A MORTGAGE OR LIEN LEASEHOLD OR ESTATE RELATED TO LAND IS DETERMINED BY LOCAL LAW OF THE JURISDICTION WHERE LAND IS SITUATED. 23 PHILLIPS NIZER LLP B. DETERMINATION OF APPLICABLE LAW FOR PERSONAL PROPERTY (NY EPTL SECTION 3-5.1(c)) 1. FORMAL VALIDITY: a. LOCAL LAW OF NEW YORK b. LOCAL LAW IN WHICH THE WILL WAS EXECUTED AT THAT TIME c. LOCAL LAW OF DOMICILE, EITHER AT TIME OF EXECUTION OR AT DEATH. 24 12 PHILLIPS NIZER LLP 2. INTERPRETATION (EPTL SECTION 3-5.1(e): LOCAL LAW OF DOMICILE AT TIME WILL WAS EXECUTED. 3. REVOCATION OR ALTERATION OF DISPOSITION BY SUBSEQUENT TESTAMENTARY INSTRUMENT OR BY PHYSICAL ACT IS DETERMINED BY LAW (NOT JUST LOCAL LAW) OF DOMICILE AT TIME OF SUBSEQUENT INSTRUMENT OR PERFORMANCE OF PHYSICAL ACT (EPTL SECTION 3-5.1(f)). 25 PHILLIPS NIZER LLP 4. FOLLOWING ISSUES ARE DETERMINED BY LAW (NOT LIMITED TO LOCAL LAW) OF DOMICILE AT TIME OF TESTATOR’S DEATH (EPTL SECTION 3-5.1(b)(2)). a) INTRINSIC VALIDITY b) EFFECT c) MANNER IN WHICH PROPERTY DEVOLVES WHEN NOT DISPOSED OF BY WILL. 26 13 PHILLIPS NIZER LLP SEE HOFFMAN-GLASSER REPORT (1966): THE “EFFECTS…OF DISPOSITIONS OF REAL PROPERTY…SHOULD BE GOVERNED BY THE LAW OF THE SITUS OF THE PROPERTY (INCLUDING ITS CONFLICTS OF LAWS).
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