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General Principals

Foreword
When it comes to probate matters the reader / client need to obtain absolute perfect guidance before completing and signing a will, for the sole reason that; place of birth, residence, choice, domicile, even the place of birth of the parents can decide whether the signed will stands in probate matters, regardless the jurisdiction where the will is held.


Basic Definitions
 

  • Will

A document being a testamentary declaration by which a person signifies his wishes as to the devolution of his property after death. A formal declaration giving a person's possessions to the persons he wishes to benefit also called ( beneficiaries).

  • Codicil

A document to alter dispositions made in a Will which is to be admitted to Probate with the Will.

  • Immovables

·Land and buildings an land including leases for more than nine years "flying freeholds" and those mortgages known as "Hypotheques conventionelles". (Sometimes called "real estate" or "realty" which strictly does not include such leases and Hypotheques).

  • Movables

All other personal possessions and property including clothing, jewellery, bank accounts, investments, furniture, motor cars, leases for less than nine years and " share transfer" properties. (Sometimes called "personal estate" or "personalty").

  • Testator /
    Testatrix

Man / woman / who makes a Will.

  • Executor
    Executrix

Man / woman / company appointed under a Will to
administer an estate

  • Probate

The proving of a Will in Court leading to the issue of a Grant of Probate which shows who has been appointed to administer the estate and contains a copy of the Will and any codicil.

  • Legacy

A gift in a Will of a sum of money.

  • Beguest

A gift in a Will of something other than money.

  • Devise

A gift of immovable property.

  • Residue

The rest or remainder of an estate after the payment of debts, expenses, legacies and bequests.

  • Legitime

The right under common law for a spouse and / or issue to claim their share of a movable estate which has not been given to them under a Will. If spouse and issue both survive they can (subject to certain deductions) claim one third each: if only issue (or spouse) survive the claim is two thirds.

  • Intestate

Dying without making a Will.

  • Letters of
    Administration

The document given under seal of the Court to a person to enable him to administer the movable estate of an intestate.

  • Administration

Dealing with the movable estate of a deceased person by obtaining a grant, collection the assets, paying the debts and expenses and distributing the remaining assets to the persons entitled under the term of the Will or according to law.

  • Assets

Rights and benefits in or over property, tangibles or intangible, capable of pecuniary assessment and of legal assertion.

  • Liabilities

Debts due by decease at the date of death including income tax for the period to the date of death and funeral expenses.

  • Testamentary
    Expenses

Expenses of proving the Will, including the costs of any Court actions necessary, Probate Court fees if movable estate, (or registration fees if immovable estate), professional fees and other costs of administration.

  • Domicile

A person's fixed and permanent legal home depending primarily on the physical fact of residence and the intention to remain or return.

  • Estate

The property of the deceased on death; gross estate - the cumulative total of all assets; net estate - gross estate less liabilities.

  • Principal Heir

The nearest relative who is the person entitled to a grant of letters of administration on an intestacy: oldest son or if no sons eldest daughter or if no issue eldest brother etc.

  • Issue

Children, grandchildren and all other lineal descendants.

  • Per Stirpes
    Par souche

"By the stems" for the purpose of taking a proportion of a share of an estate which a deceased parent would have taken.

  • Per Capita
    Par tete

"By the heads" for the purpose of all beneficiaries taking an equal share.

  • Trust

A disposition of property whereby the legal title is vested in the trustee who administers the property on behalf of the beneficiaries who have restricted enjoyment. Trusts are created by Will if there are life or minority or discretionary interests.

  • Revocation

The cancellation of a Will or of part of it which can be effected by destroying it, making a new Will, adding a Codicil or (partly) by divorce.

Main reasons for making Wills

  • To ensure that a person's assets will be distributed according to their wishes (subject to nay legitime claims) i.e. to choose their beneficiaries.
     
  • To choose who is going to administer movable estate i.e. the executor.
     
  • Distribution of the estate may be dealt with more quickly and efficiently to minimise hardship on the family.
     
  • Estate planning may result in large savings in costs of administrations and possibly in immediate family and others who might benefit under a Will
     
  • To avoid intestacy. Not making a Will could mean that relatives who are either not known or not liked could inherit. Someone who thinks they only have a small estate may be wrong if there are;

    (a) Life insurance proceeds,
    (b) Death in service benefits,
    (c) Inheritance from someone else's estate,
    (d) Wins on lottery, football pools, etc.

    By failing to name an executor the task may be carried out by someone who does not do it properly.

     

  • To give directions for funeral, disposal of bodily organs, etc., and other wishes (but not "living Wills"


Specific objectives

  • To obtain legal advice on types if assets ( e.g. joint) claims against the estate ( e.g. legitme) and re-organising affairs to meet estate planning objectives ( e.g. form a trust, covert movables to immovables).
     

  • To obtain tax advice and to distribute the estate more tax efficiently - especially if there are foreign assets or foreign beneficiaries.
     

  • To make provisions for an unmarried partner.
     

  • Commorientes - to provide for the inheritance on simultaneous deaths via accidents.
     

  • To make substitutional provisions to take effect if chosen beneficiaries predecease.
     

  • To keep wealth in the family for the benefit of grandchildren / great-grandchildren "cascading through the generations" Beware of rules that could apply.
     

  • Change provisions of an old Will to add or remove a beneficiary. Small changes can be made by a codicil.
     

  • Declaration of domicile (significant for death duties and forced heirship).
     

  • To setup family / charitable trusts to take effect on death.
     

  • To keep family heirlooms in the (respective) family.
     

  • To make small gifts of personal items (specific bequests).
     

  • To give legacies to friends or relatives (pecuniary legacies).
     

  • To make gifts (legacies / shares of residue) to charities.
     

  • To reward servants / employees for faithful service.
     

  • To exercise a power of appointment over a trust funds.
     

  • To record various wishes and views e.g. animals, letters of wishes, family bible, re-marriage.
     

  • Disposal of house, lands.
     

  • Disposal of company shares, control of company.
     

  • Disposal of assets in a foreign domiciliary making an offshore Will to deal with offshore assets.
     

  • Anticipation of future wealth e.g. a wife inheriting a house, children inheriting from parents, insurance policies forming part of an estate (people who may have no assets at present but whose estate may be of value or death).
     

  • Extension of statutory powers e.g. receipt of parent / guardian for minor beneficiaries. Power to carry on a business, trustee powers.
     

  • To form a will trust for life interests or minor beneficiaries as an alternative to a discretionary trust.

 
     

 
 
 

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