Every little detail matters

If you are thinking about estate planning, it’s important to be fully up to speed with the applicable legal and tax rules. Nasty surprises and conflicts generally arise when you are not properly prepared. As an example, Bénédicte Elikann, Head of Wealth Planning at BIL, emphasises that it is essential to get to grips with any specific regulations applicable in other countries if the heirs or the property inherited are located abroad.

Ms Elikann, what information is required before tackling the issue of family estate planning? How should such conversations be prepared?

Such discussions require careful preparation, so before getting started, it’s important to ask the right questions and formulate clear responses. It’s therefore important to be familiar with the rules on inheritance and to know what you are trying to achieve. A first key step is to establish an inventory of your assets. The next step is to carry out a fundamental analysis of the related legal and tax aspects.

So it’s important to be familiar with the rules applicable to your individual situation?

Absolutely. Many people know the general rules, but, as is often the case, the devil is in the detail. Before starting to talk about inheritance issues with your nearest and dearest, it’s preferable to find out precise information about the legal provisions applicable to your individual situation. It’s a good idea to get the advice of a specialist on this matter. Having an external expert present for a family discussion on inheritance is also a sound approach. A specialist can view the conversation objectively and help guide the discussion in the right direction.

A good overview of the situation is key

It’s important to know what the law says. It’s particularly important to take account of the laws applicable abroad. You may be in for some nasty surprises if you don’t have the necessary knowledge or the help of an expert.

What are the major issues that you face as an expert in this field?

One example is issues related to transferring a company. In some countries, such as France, there are specific rules on such matters, but this is not the case with Luxembourg tax legislation. As an entrepreneur, it is therefore very important to manage any inheritance issues during your lifetime, thus protecting your company’s future. As is the case with traditional inheritance issues, you need to be up to speed with the applicable legal framework and precisely define how you wish to transfer your own company.

Issues regarding blended families are also raised regularly. Existing legal provisions were drafted decades ago based on the more traditional concept of a family and do not always reflect the reality of these families. External help is often sought to deal with estate planning issues in families where there are several children from different marriages.

You mentioned the rules that apply abroad several times, why is that?

Because for properties located abroad, local laws apply when it comes to inheritance issues. This applies to both civil and tax aspects. For example, if you acquire a property abroad, you should be aware of the inheritance implications and consider the best way to resolve any issues raised at the earliest possible opportunity. Even the right decisions can prove very costly if they are taken too late.

Let’s talk about a will. Which issues require particular attention?

The rules are very strict. To draft a will, you must be of sound mind and able to freely and validly express your wishes. A will is a formal act which must be prepared in a specific written format and be signed and dated, in order to be legally valid. There are three types of will: an authentic will (notarised); a holographic will (written); and a mystic will, or secret will.

Although a written will is the easiest and cheapest option, having a notary draft an authentic will helps avoid any errors of form or substance, which could invalidate your last wishes.

Can a will be changed?

Whatever form you choose for your will, you are free to change or revoke it at any time, providing that legal provisions are respected. It’s important to know that a will that has been authenticated by a notary can only be revoked by a new will authenticated by a notary. In the absence of a new version, the last authentic will remains valid and must be applied. This is, of course, providing that any inheritance rules that are in force and which take precedence have been taken into account.

The matrimonial regime is decisive

Are there any specific rules regarding inheritance law that must be respected in Luxembourg?

Luxembourg law requires the liquidation of the matrimonial regime as the first step in settling an estate. The aim is to determine to which partner or spouse the property belongs and in what proportion. Once this question has been resolved, the division of the property between the various heirs can begin. The matrimonial regime which spouses have adopted during their lifetimes therefore determines subsequent inheritance issues. If spouses have opted for the universal community of property regime with the entire estate allocated to the surviving spouse (survivor’s clause), the surviving spouse inherits the full estate of the deceased. In addition to the universal community of property regime, there are two additional regimes in Luxembourg: the separation of all property, pure and simple; and the legal community of property regime, under which joint ownership is restricted to property acquired during the marriage and which distinguishes between the joint estate of the spouses and the separate estate of each spouse.