Making a will is an important part of managing your affairs. With our help, it need not necessarily be a difficult or time consuming process. A will gives effect to your wishes and provides you with certainty as to how your assets will be treated upon your death.
Not making a will means that your assets will be dealt with in a specific way governed by law. These are called the Intestacy Rules. This may not reflect what you might have wanted, and may have unforeseen and unwanted consequences.
Because an executed will is signed and dated in the presence of witnesses, it is effectively a snapshot of your intentions and your assets at a particular time. Therefore, it is important to review your will every three to five years to ensure it accurately reflects any changes in your circumstances or in your intentions.
When working with you to produce your wills, we are able to demystify the process to help and support you. This ensures that the drafting exercise is as smooth and as simple as possible.
Before 2 April 2012, Guernsey was a jurisdiction in which forced heirship rules applied. Those rules have their roots in Normandy customary law which is many centuries old.
Forced heirship rules set out very clear requirements on how assets are dealt with at the time of one’s death. In consequence, a person had limited flexibility and freedom of choice when it came to deciding who might have the benefit of that person’s property, and in what proportions.
That said, wills made before 2 April 2012 are still valid if they have been executed correctly. For this reason, the earlier rules continue to remain important to understand, particularly for the process of probate (which involves the Ecclesiastical Court), and are described below.
The Inheritance (Guernsey) Law 2011 removed those earlier restrictions of choice and from 2 April 2012 we are now living in a Guernsey society where freedom of testamentary disposition applies. That means that, within reason, you can deal with your assets however you please. It is, therefore, important to take advantage of the benefits that such flexibility of choice provides.
Realty and Personalty
In deciding how you may wish your assets to be treated, an important distinction is made in law between those assets which are realty, and those assets which are personalty.
Assets of realty are land and buildings, and which would include your home. The law of the place where such assets are situated will generally determine how they are administered. So, a Guernsey property will be governed in accordance with the laws of the Island of Guernsey.
This, however, is slightly more nuanced when a limited company owns a Guernsey property.
In that case, the ultimate technical ownership of the property would be through the holding of shares (which are considered personalty). The tax domicile of the limited company will actually determine the governing law which applies. So, a Guernsey registered company which owned a Guernsey property would be governed by Guernsey law; and an English registered company which owned a Guernsey property would be governed by the laws of England and Wales. Further details about the treatment of personalty appears shortly.
The applicable law is a principal consideration if you own properties outside Guernsey, as in that case, it may be advantageous to have separate realty wills for the jurisdictions in which such properties are located. It would also be important in that scenario to ensure that the Guernsey realty will is not accidentally revoked. We will work closely with you in those circumstances to protect your best interests.
In Guernsey, a will of realty forms part of the title to property and is a document of public record. Copies of wills of realty are available for inspection at the Greffe, and which is situated on the Ground Floor of the Royal Court. Unlike in England and Wales, probate is not required of Guernsey realty (the title to which immediately passes upon the death of a property owner and without any intervening procedural steps).
Given that by its nature a will is a very personal and private statement of intentions, we would always recommend that our clients have two wills, namely a will of realty (which any member of the public can see), and a will of personalty (which cannot be seen by members of the public).
Assets of personalty include cash, shares, jewellery, paintings and other ‘movable’ things. A will of personalty would typically deal with specific gifts to family, friends or charity, for example, and does require a good amount of careful thought.
The administration of a will of personalty depends upon where you are domiciled. Domicile is a complex issue, and there are a number of different types which have very different outcomes. We strongly recommend that you take appropriate tax advice, and we are pleased to be able to recommend accountants who are experts in this particular field, and who we work closely with.
At its simplest, if you are resident in Guernsey at the time of your death, then for tax purposes, the laws of the Island of Guernsey will ordinarily govern the administration of your personalty assets here.
In the event that you are not resident (for tax purposes) in Guernsey at the time of your death, but have assets of personalty here, then the starting point is that your ‘home’ domicile laws will govern the treatment of your Guernsey personality assets.
The Guernsey probate process does require the payment of a tariff which is broadly equivalent to 0.35% of the total value of the personal assets.
Guernsey does not have an Inheritance Tax regime akin to that in England and Wales and is, therefore, a favourable jurisdiction in matters of estate planning.
In the event that you own your home (or for that matter, any realty) with another, then it will be held in one of two ways.
The first method of co-ownership, known as ‘joint ownership’ means that upon a person’s death, their interest in the property will pass automatically to the surviving owner(s).
The second method of co-ownership, known as ‘ownership in common’ means that a person’s interest in a property will not pass automatically to the surviving owners. In that case, the person’s interest in a property is a specific percentage, and which will pass according to their will. It is therefore vital that a will of realty is made, or else the Intestacy Rules will apply (as previously mentioned), and which may lead to an outcome that was not anticipated.
It is not immediately apparent why it is important to make a will of realty when you may own property on a ‘joint ownership’ basis. In fact, to do so is akin to a policy of insurance.
In the situation of a husband and wife, or civil partners, it is not uncommon for each to leave their assets to the other. What is sometimes forgotten is the situation when (sadly), both parties may pass away at the same time, and neither has made provision for the situation described above. That can potentially lead to a situation when property passes to a beneficiary that was not intended to receive it, and the uncertainty that may follow. By working with you to bear these considerations in mind, we are able to produce tailored wills that are flexible to meet your needs.
A brief mention of Guardianship in Guernsey
In considering one’s own affairs, it is important to mention here about guardianship. Guardianship is a very significant step in a person’s life. It is not always necessary.
However, when it is (often due to health reasons and involving medical evidence) it will always involve an application for permission from the Royal Court of Guernsey.
A successful application for guardianship means that the decisions of a person in need of care are taken away from them, and instead are placed in the hands of a ‘family council’. As one would expect, there are various rules around the roles and responsibilities of the members of the family council who tend to be family members, or very close friends.
Our team are able to assist with any queries that you may have in this regard, and which may include powers of attorney. Ferbrache & Farrell LLP is committed to service excellence and we look forward to helping you.