The inheritance is conducted by expertsToday many Russians have abroad houses, the companies and other actives which it is necessary to bequeath under local laws. The bad knowledge of laws of inheritance of the country where accumulation are stored, can lead to pitiable consequences. In how banks help to solve a question on inheritance transfer, understood an observer “ Money “ Elena Kovaleva.
Unlike the majority of the European countries in Russia since recent time the tax to the inheritance is excellent. However, if actives of the Russian are abroad, they will be descended or given under host country laws. And taxes to similar actions in some countries reach 40 %. Therefore foreign banks offer the well-founded clients the special products, allowing to avoid problems by inheritance transfer.
the most known tool for inheritance transfer is the trust. It has arisen in England in the Middle Ages: Leaving on war, princes gave the earths and locks to management to the person to whom trusted. Since those times the trust essence has not changed. The owner of a condition establishes a trust in which transfers the assets. The managing director who is responsible for safety and investment property management of fund is fixed to a trust. Thus trastovyj the contract can provide appointment of the trustee, or a protector which carries out supervision of activity of the managing director. The trust provides to its founders full confidentiality. In the majority of jurisdictions obligatory state registration of trusts is not provided even not.
it is necessary to mean that the trust is not the legal body. As a matter of fact, it is created by the simple contract between its founder and the confidential proprietor. Thus, establishing a trust, the owner of actives ceases to be their proprietor, and for safety of actives the managing director answers. That is it is a question, in essence, of irrevocable assignation to other person who any more does not bear responsibility for another`s actions. Business of a family of Andersons which obeyed in the end of 90 - h years in the USA is in this respect indicative. Andersons - the citizens of the USA who have earned a considerable condition on advertising of the goods of the company, subsequently recognised roguish. In 1995 they have founded a trust on Cook islands where have translated the means. In 1998 when the seller of the goods court has been recognised by the swindler, the Federal trading commission of the USA (FTC) has demanded from Andersons voluntary to return all money earned on advertising. Spouses have refused, explaining the position to that they were only contractors of the company, and in its roguish operations did not participate.
however FTC it was possible to insist on the: the court has obliged enterprising spouses to return money. Andersons have declared that all their property is in the trust property on Cook islands and only the managing director can dispose of it. The court has decided that they should demand from the managing director to return all property on the court deposit in the USA. Andersons have written the corresponding requirement to the attorney, but that, as well as it is necessary to the confidential managing director in conditions when benefitsiary fund operate on compulsion, has refused to carry out it. As a result in the middle of June, 1998 the federal judge has passed the decision on the married couple conclusion in prison for disrespect for court until their actives transferred in a trust, will not be returned in the USA. But in the end of the same year the higher judicial instance has cancelled the given decision, and the married couple has appeared on freedom. FTC has appealed against against a verdict, Andersons have again planted, this time for some months. From their prison eventually have let out, they have not returned money, having concluded with FTC the agreement of lawsuit on conditions favourable to.
Banks like to repeat that the trust gives to the founder freedom in a choice of successors. Apply for reception trastovogo inheritances those can only benefitsiary which have been specified by the founder. For this reason a trust - the best way to leave the inheritance to illegitimate children bypassing other successors that is not always possible through the usual will. “ the usual will is easy for challenging through court and to receive that was not supposed the testator “ - the representative of consulting company Corporate Alliance AG Erez Magaral marks. To it it is necessary to add that, according to the Russian Civil code to receive an inheritance share minor children and incapacitated relatives even if they are not specified in the will are obliged. The trust helps to avoid it.
“ Though, if undesirable successors know that actives have been transferred in a trust or family fund, they can apply for them and even to receive the judgement to own advantage “ - marks Erez Magaral. Another matter what to nullify trust conditions difficult enough. “ for this purpose the Russian judgement should be supported court of that jurisdiction where the trust is registered, and it occurs not always “ - the vice-president of Russian international bank Alexey Gusev marks.
the founder of a trust has the right to specify at once a little benefitsiarov in which advantage the property both during lifetime of the founder, and after his death will be distributed. Thus the trust is a way to keep the inheritance if there is a risk that successors will quickly waste it. For example, the founder can not transfer directly to the successor real estate, but will allow it to live in it or to lease it. Or the basic part of the inheritance can be otpisana to grandsons while children will receive the regular grant.
Besides, by means of trusts it is possible to optimise the taxation as benefitsiary a trust are not formally owners of property so, should not pay the tax to it. Such conditions, in particular, operate in Liechtenstein. The trust also allows to avoid taxes by inheritance transfer. At the same time “ in a trust benefitsiary and the founder get to dependence on the managing director as actually cannot interfere with management of the actives, transferred to the possession the managing director, - operating director K &S Capital Management Oleg Kapitonov marks. - Besides, in case of bankruptcy of an operating trust in a number of jurisdictions penalty can be imposed on the property which is in a trust. And it, of course, trust minuses “.
Therefore it is especially important to make correctly at trust establishment the contract. As a rule, over its creation some lawyers work, and on an exit this document reminds sometimes tolstennuju the book. And still, as the trust consists for long time, no means always it is possible to provide in trastovom the contract all conditions which the managing director should observe.
in addition within the limits of struggle amplifying all over the world against washing up recently laws quite often change. “ and frequently the trust opened in one jurisdiction 15 years ago, loses today the meaning under the changed conditions. And to predict it it is in advance impossible, - complain in one of banks. - so, for example, has occurred to the trusts registered in Belize. For quite some time now the American judges consider that all trusts registered in this jurisdiction, it is possible to admit void already for the registration fact in this offshore zone “.
One more appreciable minus of trusts consists that they are recognised not by all states, and it can have negative consequences. Existence of trusts is legally issued only in the countries applying Anglo-Saxon model of the right. Also existence of trusts is admissible in some jurisdictions with the mixed legal system.
a trust - pleasure not from cheap. Annual expenses for its maintenance average ˆ20 - 30 thousand Expenses on trust establishment will make still nearby ˆ20 thousand
In the countries of the continental right also the tools pursuing the same aims, as a trust are developed. It is a question of so-called family funds. Unlike Anglo-Saxon system of the right in continental legal system the judge does not create precedents, and the law is based on respect of the right of a private property, therefore the risks inherent in a trust of a general law, are excluded in advance. “ Establishing family fund, it is easy to estimate, what risks the founder and benefitsiary can face in the future. And this one of appreciable advantages of funds before trusts “ - Oleg Kapitonov marks. In cases with trusts always there is a risk of occurrence of the unforeseen circumstances connected with case judgements.
business in the relation of the trusts founded by the vice-president of Open Society LUKOIL by Vitaly Schmidt, become history under name Schmidt vs Rosewood case became one of such loud precedents. Successors of unexpectedly died billionaire had to demand through court reception on copy hands trastovogo the contract with company Rosewood located on isle of Man. The parties have reached trial in chamber of lords, and as a result successors have achieved the. “ To this case benefitsiary a trust simply had no access to trastovomu to the agreement, actually they did not know, how many actually it the founder has left, they simply received money from a trust without any explanations, - Alexey Gusev tells. - but after that precedent benefitsiary had an opportunity to get acquainted with trastovym the agreement “. Each precedent in English - the American legal system means that existing trusts should or change the conditions, or mean this precedent as possible danger in the future. With family funds of such risk is not present.
the Family fund is the independent legal body operated council of fund in advantage benefitsiarov, specified by the founder. Thus fund council is obliged to be guided by the instructions of the founder defined in the memorandum. Besides fund council into which the representative of the founder, in fund can enter can be provided also a protector also defending the rights of the founder and benefitsiarov. The information about benefitsiarah fund, structure of actives and an order of the order them, as well as in a case with a trust, publicly does not reveal. At formation of fund the information on the founder can remain not known to anybody, except the authorised representative registering fund.
the main appreciable advantage to the founder of family fund before a trust - the big flexibility and controllability. In particular, the founder can change structure of council of fund, the memorandum maintenance, so, benefitsiarov and conditions of payments. As well as in a case with a trust, the property contributed to fund cannot be withdrawn creditors of the founder, judicial or state structures. However the founder of fund has the right to return the actives enclosed in it that it is impossible in a trust more often.
the Minimum capital of family fund, in particular, in Liechtenstein should make 30 thousand Swiss francs or the equivalent sum in any other lawful currency. Fund creation, as a rule, costs dearer a trust - ˆ25 - 40 thousand However, annual service can be cheaper - from ˆ5 - 10 thousand at the Russian clients use Special popularity funds of Liechtenstein, Panama, Austria and Switzerland.
however, not all the Russian rich men reflect on inheritance transfer in advance. “ We have faced an interesting phenomenon: the Russian businessmen believe that will live eternally “ - admitted one of large foreign banks. “ in Russia the majority of men of means are still young, and consequently not all of them think of inheritance transfer, - the representative of Swiss bank Pictet and Cie ` s tells Siril Plozhu. - At the same time it is necessary to notice that the situation has gradually started to change. I think that in some years inheritance planning can become norm “. “ the Primary goal for nasledodatelja is today to define a circle of the property and a circle of successors. Besides it it is necessary to find in advance at least one authorised representative - an executor who will know about existence not only trusts and funds, but also other actives nasledodatelja “ - the chief executive on work with the VIP - clients of bank " advises; Uralsib “ Nikolay Karpenko. In Russia it is already a lot of examples when after sudden death of the man of means successors remained with the broken trough because or simply did not know where real actives are stored, or business has been written down on figureheads who have simply heated up hands on another`s misfortune.
Besides, it is necessary to mean that though both trusts, and family funds provide to their real owners confidentiality so, protection, these tools can be all the same vulnerable. “ Therefore the most difficult in the course of creation of trusts or funds - correctly to get actives in created structure, after all legal cleanliness of occurrence of an active " here is important; - Oleg Kapitonov considers. “ the Errors made at the very beginning of a way, can be found out too late. Therefore the organisation of a trust or family fund should to be necessarily a part of wider management plan a condition (wealth management) “ - Erez Magaral is assured.