Many people put off making a will, sometimes until it’s too late. But for expats it’s an especially important aspect of financial planning. We asked Asa Candussi Wilkins, director of Phoenix Wills and a Hong Kong-based expat of 12 years herself, all the important questions on the topic.
What is a will?
The instrument by which money, real estate and personal property are distributed after your death. A will also allows you to appoint legal guardians of your minor children if both parents pass away.
Today’s wills are sophisticated documents but the principles haven’t changed since medieval times; a will must still be signed and witnessed in accordance with legal requirements.
What happens if a person dies without a will (intestate)?
When you’re a long way from home and have a few roots down in foreign soil, any problems arising from not having a will are compounded. Letters that have been signed but not witnessed count for nothing. Verbal instructions are only valid if they are given by a soldier on the battlefield.
In the absence of a will that fulfils legal requirements, the Rules of Intestacy are brought to bear, both in your home country and wherever you own real estate. These are imposed by the government and vary from country to country, and indeed from state to state in places like Australia, the USA and Canada. In most countries, a limited amount (in Hong Kong, currently HK$500,000) is allowed to pass between spouses. Anything over that is divided between the spouse and children (or parents/siblings if there are no children) and put into trust. In other words, the capital is not available.
Should Hong Kong expats have wills in their home countries and here, or do wills apply across any country a person is in?
As a general rule of thumb, an expat should have a will for his country of origin and residence. Furthermore he should have a separate will for each jurisdiction in which he holds significant assets, and certainly where he owns real estate or land. That’s not to say that one will wouldn’t do the job, but it can greatly extend the probate process. An example is the gentleman who left behind properties in seven countries but only one will – the process took 23 years, cost a fortune and by the time the assets were finally released, most of the beneficiaries had passed away themselves.
Do all the assets in a person’s estate get distributed through their will?
Any asset that is jointly owned with someone else will automatically pass directly to the surviving joint owner.
Is it possible to exclude a spouse or child from a will?
In Common Law countries it’s possible, but it must be done in a way that prevents the excluded person from making a claim to the estate – a claim which a dependant would probably win, if he or she had simply been left out of the will. Civil Code systems are setup to prevent exclusion of a dependant from inheriting your estate, but there are ways of minimising the share that the estranged family member would be entitled to inherit.
Does a family member need to be appointed as an executor of an estate?
Many people believe they must appoint a professional as the executor, often the firm that they appointed as their will writers. However, probate – albeit time consuming – is not a difficult task, especially if you’ve prepared well by making a will and documenting the state of your affairs. We recommend that you appoint a family member or close friend as your executor, and include provisions in your will for your executors to appoint professionals to assist them with the process if needed. This way, your family has control over the legal fees and time involved in the process, but still with the possibility of seeking assistance.
What happens with regard to the care of very young children if something happens to both parents?
If there’s no evidence of a guardian being appointed, whether in a will or by a Deed of Appointment of Guardianship, then the State takes responsibility until a guardian is found. If no suitable person is available or willing to take the responsibility, then the State remains in charge of the orphaned child or children for the rest of their minority. If both sets of grandparents apply to become guardians, there is the possibility of a major family rift if they cannot agree. The legal rights are with the father’s family if the couple is married, but whichever way the court decides, it will not award the children to either set while there is a dispute raging on. Godparents have no legal status, though most people choose them as people who could bring up the children if circumstances took their parents away. The appointment must be made in a legal document; nothing else will guarantee that the preferred guardians of your children will be appointed as you would wish.
Are wills easy to change?
Changes to a will are necessary from time to time, but any attempts to modify an existing will by crossing out text or writing in the margins actually result in the whole document being rejected by the Probate Office. To change a will, you have to either add a codicil or engage in a full re-write, depending on the scope of the changes.
How much does a will cost?
Prices range from cheap to expensive. When shopping around, make sure that you are quoted a fixed price so that costs aren’t added if your situation turns out to be more complex than initially anticipated; many firms offer basic, cheap wills, but they don’t cover every eventuality. Then you have the very expensive, complex, 20+ page documents, which can be difficult for a layperson to interpret. Often you pay for the added legal phrases, which aren’t actually necessary and more often than not confuse clients so much that they give up on reading through them.
Phoenix Wills offers a prime service at a medium price level, with two cost structures. Our prices are fixed and no added charges will arise even if the circumstances of the client turn out to be complex, or if he changes his mind several times throughout the process.
With a document as important as a will, you should be more concerned about finding a will writer who you’re comfortable with, rather than the one offering the best price.
What’s the process of getting a will drawn up through Phoenix Wills?
After an initial meeting to take your instructions, we then work on a first draft of your will. When you’re happy with the draft (which can be changed as many times as you want), we will mirror to cover your spouse and any other jurisdictions that may be needed. We then meet again to sign and attest your wills in accordance with legal requirements. The entire process usually takes four to six weeks, but it can be completed in days if there’s an urgent need. We then offer a safe storage solution whereby you are reminded to check in with us if there are any updates to be made, and your executors are reminded where your wills are kept if they need to retrieve them.
This story first appeared in Expat Living’s August-September issue.