What happens to your digital assets upon death?

What happens to one’s digital assets upon death? A brief summary of the rules in the U.S.A. that determine how much of our digital information is available to our fiduciaries upon death.

While technology is constantly advancing in an attempt to improve our lives, a concession that we make is our privacy. Just how much of our information are we willing to share, with whom and when? Since much of what we do on our phones, laptops and computers is in the digital realm, the legislature and the courts in the US are now grappling with a new challenge: what happens to one’s digital assets on death?

In an effort to protect the privacy of the user, many tech companies are struggling with just how much information should be shared with the fiduciaries of a decedent.

Legislative Approach

So far, 41 US states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (the Uniform Law). In September 2016, New York added art.13-A to its Estates, Powers and Trusts Law (the Estates Law). This is largely based on the Uniform Law.

Despite the enactment of the Estates Law, which addresses the ability of a fiduciary to access digital assets, tech companies are still seeking court orders before releasing digital information to fiduciaries. At the time of writing, there have been at least four reported cases that address the access to digital assets of a decedent: three in New York, and another currently ongoing in Massachusetts.

These cases address ‘electronic communication’. If a digital asset is classified as an electronic communication, the fiduciary will need to provide proof of a user’s consent (usually in a will) or a court order in order to obtain access.

However, if the will is silent, what kind of digital assets should fiduciaries have access to? Currently, everything except the content of electronic communications, unless there is a terms of service agreement that provides otherwise.

Recent Case Law

In 2019, in Matter of Swezey, the petitioner sought access to photographs stored in his deceased spouse’s Apple iCloud account after the decedent died unexpectedly at the age of 45 with two surviving minors. The New York County Surrogate’s Court (the Court) held that the photographs were not electronic communications and that no lawful consent was required for disclosure under the Estates Law.

Interestingly, before applying the Estates Law, the Court explored the relationship between the petitioner and the decedent, stating that: their computers were adjacent to each other at home; they did not attempt to shield access to digital assets from one another; the petitioner viewed the images on the decedent’s computer; and together they used the photos to make holiday cards. Despite analysing their lifestyle, the Court ultimately held that the petitioner had the right to access the photos as a fiduciary because they were not electronic communications.

In 2017, the Court in Matter of Serrano ruled that if the information regarding the user’s contacts includes ‘information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person’, it is a catalogue of electronic communication, and not electronic communication. Similarly, the Court determined that a calendar is not electronic communication because there is no transfer of information between parties.

Also in 2017, in Matter of White, the petitioner requested access to the decedent’s Gmail account to obtain information about assets that he needed to identify and administer. While the Suffolk County Surrogate’s Court in New York held that Google was required to disclose the decedent’s ‘contacts information stored and associated with the email account’, it erred on the side of privacy and held that greater access could be granted later, but only if warranted.

Avoiding Challenges

To address these new challenges, many companies have created online tools that allow trusted individuals to gain access to an account after the user dies, such as Facebook’s ‘legacy contact’ and Google’s Inactive Account Manager. While some companies have attempted to grant access to users’ accounts, not all companies provide such options.

US law may be starting to catch up to technology. However, discussions about access to and disposition of digital assets should be held early on during estate-planning conversations with clients, and carried into the necessary documents, to ensure that fiduciaries and loved ones are granted the intended amount of control. https://www.duanemorris.com/

Reshma Shah

Duane Morris

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Succession and Last Will

Succession in Switzerland – Last Will

According to the general provisions of the Swiss International Private Law Act, Swiss courts or administrative authorities at the decedent’s last domicile shall have jurisdiction over probate proceedings and inheritance disputes. The jurisdiction of a state who claims exclusive jurisdiction over real estate within its territory remains reserved. The estate of a person with his or her last domicile in Switzerland will in principle be subject to Swiss law.

Order of succession in Switzerland

The Swiss Civil Code determines the order of succession. The closest heirs of a decedent are the descendants. As a rule, the children shall inherit in equal parts; adoptive children have the legal status of natural children. Their own issue takes the position of predeceased children.

In case the decedent does not leave any children, the inheritance shall devolve to the issue of the parents. Their descendants in all degrees per stirpes shall substitute a predeceased mother or father. The surviving spouse or registered partner is legal heir as well.

Swiss law states statutory entitlements for legal heirs (so-called forced heirship portion). Hence, the legal heirs are entitled to a certain percentage of the decedent’s inheritance. This percentage depends on whom the legal heirs have to share with in the estate.

Last will

In order to arrange for a succession different from the intestate succession, a last will or inheritance contract may be drawn up. Nevertheless, a last will, just as an inheritance contract, will have to comply with the statutory entitlements of the legal heirs. According to Swiss law, a last will shall be valid as regards its form if it is drawn up in the form of a public deed or in holographic form.

A foreigner may, be it by last will or inheritance contract, subject his or her estate to the laws of his or her home country (professio iuris). Such disposition shall, however, become null and void if, at the time of death, the decedent was no longer a national of that state or if in the meantime he or she had become a Swiss national.

The Hague Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions will shall govern the form of a last will. Therefore, a testamentary disposition shall be valid from a formal point of view, if its form complies with the international law:

of the place where the testator has drawn it up;
of a nationality possessed by the testator, either at the time he made the disposition or at the time of his death
of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death
of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death
as far as immovables are concerned, of the place where they are located. https://www.linkedin.com/in/walter-h-boss-b9810610/

Walter H. Boss

Walter Boss

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The Trust as a Family Holding Structure

A Trust can provide a very good solution for the long term holding and preservation of family wealth. Trusts have been used for generations for the holding and preservation of family wealth.

A trust can arise in several ways, but the most usual in the context of family wealth is either by virtue of the lifetime act of an individual, or by virtue of provisions left by an individual under his will, and so coming into effect upon his death.

General introduction of the Trust as Family Holding Structure

It can sometimes be difficult to explain what a trust is, but at risk of oversimplification, a trust can be described as being the situation which arises where an owner of property causes that property, either by lifetime transfer, or by virtue of provisions under his will, to be transferred to persons, known as trustees, to hold for the benefit of other persons, known as beneficiaries.

The trustees generally hold the legal title to the trust property, but the beneficial entitlement, or the beneficial interest, lies with the beneficiaries. The beneficiaries are entitled to require the trustees to perform their trusteeship according to the governing instrument, usually either an inter vivos trust deed or a will.

They need not themselves have been a party to the establishment of the trust. Trustee, on the other hand, hold a position of considerable responsibility. Two of the traditional tenets of trusteeship are that a trustee may not profit from his trusteeship unless authorised to do so, because all profits belong to the beneficiaries, and a trustee may not delegate his responsibilities as trustee to someone else, again unless specifically authorised to do so.

Thankfully, modern trust instruments are invariably drafted to include the capacity for trustees to be paid for acting as trustees, and for appropriate levels of delegation to be done to enable trustees to function efficiently in the modern world.

The identity of the beneficiaries of the trust, and their respective interests, can be fixed at the outset, or alternatively they can be determined as an identifiable group such as the descendants of a person, with the question of allocation of assets or benefits amongst those beneficiaries being left to the trustees, although generally with some background guidance provided by the settlor or testator in a letter of wishes.

Such latter type of trusts are generally described as discretionary trusts, as opposed to the former type of trusts which are described as fixed interest trusts. Where a settlor or testator is concerned with long term holding and preservation of family wealth, it is inevitably a discretionary trust which is used because it provides the opportunity to cater for future events and circumstances as they arise and develop and avoids the requirement of having to decide in advance on how family wealth should proceed down the generations.

Planning for family wealth preservation down the generations, and particularly where it is inevitably going to be a multi jurisdictional matter, is always going to throw up particular problems which have to be dealt with in their particular circumstances. Trusts can provide solutions under several different headings.

Choice of trustees

It is self evident that the choice of a trustee to handle substantial family wealth, and particularly so where this involves an operational business, is an important aspect. It is invariably going to involve a professional trustee, often a financial institution. Reputation and competence are paramount.

An individual considering the selection of a trustee will generally wish to become familiar with the candidate under consideration. This can be an extremely valuable process in terms of ensuring that the trustee has a good background knowledge of the family and of the assets to be placed in trust. It also enables the introduction of the existing family advisers to the trustee to allow for a smooth transition to the trusteeship once it has been established.

Settlor control

Successful individuals with wealth created by themselves often find it difficult to consider transferring that wealth to trustees and ceding control over it, all the more so where the wealth continues to be represented by a successful group of operating companies. At its most extreme, this can lead to the realisation that it may not be appropriate for such an individual to consider making a lifetime trust, but rather should be covered in terms of a will to become operative on death following which the individual’s capacity to control is inevitably curtailed.

Alternatively, a measure of control can be retained by the individual through retaining a direct shareholding in one or more group companies giving either positive control, or maybe some specific negative sanction. This can also be achieved through the mechanism of the terms of the trust itself by requiring the trustees in certain circumstances to seek the consent of the settlor for certain specified transactions.

However, it is important that any settlor control retained in respect of trustees’ actions or decisions should be limited to particular aspects only, because too much retained control can result in claims that there is no real trust at all. Such claims may arise in the areas of taxation, or creditors or succession, and possibly frustrate the overall intention behind the making of the trust in the first place. https://www.linkedin.com/in/john-hickson-1b855b79/?originalSubdomain=ie

Various aspects of the Trust as a Family Holding Structure

A trust can provide a very good solution for the long term holding and preservation of family wealth. Trusts have been used for generations for the holding and preservation of family wealth. A Trust can arise in several ways, but the most usual in the context of family wealth is either by virtue of the lifetime act of an individual, or by virtue of provisions left by an individual under his will, and so coming into effect upon his death.

Family office

Trustees in many cases effectively function as a family office, looking after the family’s wealth, and being involved in many aspects of the lives of the family members. A professional trustee will very likely have its own internal capacity to provide many additional levels of service beyond pure trusteeship as such. Alternatively, trustees may choose to use outside service providers for different aspects, or they may seek to establish a family office company which they hold as part of the trust assets. Such a family office company can be self standing with its own management and employees, remunerated by fees charged to the various entities to which it provides its services.

The advantage of the trust structure is that there is a trustee who is ultimately responsible for all aspects encompassed by the trust, and subject to the trustee operating properly in accordance with the governing trust instrument, decisions ultimately lie with the trustee which can help to minimise disputes and disagreements. It does not mean that disputes and disagreements at family level will not arise, but a third party decision maker can often take the heat out of disputes and disagreements.

Privacy

Wealth is a privilege for those lucky enough to enjoy it, but it also brings burdens of varying degree and in various contexts. While professional trustees in most places have to be regulated for prudential purposes, it is generally the case that details of particular trusts, their assets and beneficiaries remain matters that are private unlike, for example, in the case of companies where annual filings, including accounts, have become the norm.

A particularly important point in this context is that where assets are put into trust during an individual’s lifetime, they will not need to go through the probate process at his death. The probate procedure in most places involves an element of public information, generally including the terms of the will, and the value of assets covered by the grant of representation to the estate. Using a trust may be able to assist in maintaining personal, commercial and financial security for a family and its businesses and other assets.

Claims by creditors and others

A trust may be of assistance against claims made against an individual by creditors and others, certainly against speculative claims which are essentially founded only in their nuisance value against a wealthy individual. This can include matrimonial and heirship claims, but as these are generally referable to statutory entitlements, the statute will generally override the ability, whether wholly or partly, to defeat such claims by putting assets in trust. Cross border claims can bring their own issues in the sense of whether the courts of a country will strike down a trust which was legitimately created under its law, by reference to a matrimonial or heirship claim under the law of another country.

While the position of the settlor of a trust is sometimes exposed in this manner, the position of the beneficiaries should generally be better. As a beneficiary of a discretionary trust does not have any actual immediate interest in any trust assets, those assets cannot be actioned in respect of the beneficiary’s liabilities. The most that might occur would be for a court to make an assumption in matrimonial proceedings, for example, that a beneficiary had a reasonable expectation of receiving benefits from the trust, and hence the assets might be notionally brought into account in the division of the individual’s own assets as between that beneficiary and the spouse of that beneficiary.

Beneficiaries

A trust exists for the benefit of the beneficiaries, but this does not mean that it must be divided up amongst the family members in the short term. The maintenance of family wealth is generally a long term aspiration for the benefit of the current and also future generations of the family concerned. This can enable the trustees to consider a policy suited to the nature of the trust assets, and the divergent competencies and characteristics of the beneficiaries from time to time. This is easier to deal with where the trust assets are comprised of portfolio type investments.

The trustees in such circumstances have to manage a large pot of value and consider the manner in which it should be used to provide benefits to the beneficiaries. It is obviously much more difficult to manage where the principal asset comprises an operating group of companies. There will be tensions at beneficiary level between beneficiaries who might wish to manage some of the businesses and reap rewards in terms of ownership, and beneficiaries who feel they should be able to receive value from the trust, whether to establish alternative businesses or to engage in laudable, but less remunerative activities such as the arts of philanthropy.

This is where competent professional trustees will need to draw on their experience, and to use their skills to reconcile such tensions.

Philanthropy

A trust can cater for a family’s philanthropic aspirations by including charities as potential beneficiaries.

Settlor guidance on the nature of those aspirations will assist trustees in this context, or guidance from time to time from representatives of the main family branches. Where the circumstances warrant it, the trustees may see fit to establish a separate charitable fund as a carve out from the main trust fund to facilitate separate management in order to focus on the specific charitable areas which they desire to benefit.

Conflicts of interest

Much of a trustee’s job is determining and balancing the conflicting interests of beneficiaries. Inevitably, on occasions, some beneficiaries will consider themselves losers in such conflicts, but provided the trustees have acted in accordance with the governing trust instrument and have properly considered all relevant matters, and not any that are not relevant, they should not be exposed to any sanction in respect of their decisions.

The position is very different where trustees may find themselves exposed to a personal conflict of interest with regard to their position as trustee. Trustees must act for the benefit of the beneficiaries, and except for matters specifically permitted under the governing trust instrument, such as entitlement to remuneration for their trustee services, must endeavour to ensure that conflicts of interest do not arise.

If a conflict of interest should arise, any loss to the trust fund occurring in consequence may be considered to be due to a breach of trust, in respect of which the trustee will be required to make good the loss to the trust fund. On the other hand, if a benefit should occur to the trust fund in course of a trustee conflict of interest, the trustee has no inherent entitlement to any additional remuneration as a result.

Trustee charges

As a relic of former times, trustees are generally not permitted to profit from their trusteeship unless appropriately authorised to do so by their trust instrument. Professional trustees are obviously not going to act without being able to charge their normal fees and so trust instruments invariably contain authorisation for trustee to be paid their normal level of fees.

Trustee Indemnity

Trustees have a general indemnity under law in respect of expenses incurred in the exercise of their trusts and powers, and they are entitled to pay or discharge such expenses out of the trust assets. This will invariably be extended by more specific terms in trust instruments clarifying that trustee liability will be confined to loss caused by trustee’s wilful misconduct or wilful breach of trust. This is necessary to enable trustees to act honestly and properly in circumstances which may result in certain beneficiaries feeling aggrieved. Trustees indemnity clauses which seek to exculpate trustees for loss to the trust fund due to their negligence are generally unlikely to be upheld. https://www.linkedin.com/in/john-hickson-1b855b79/?originalSubdomain=ie

What do you need to know about Polish inheritance and donations tax?

Under Polish inheritance and donations tax law, a private foundation or a trust could be tax efficient if the Polish beneficiary fulfills some requirements.

Does the private foundation or trust qualify for the tax-exempt status under Polish law?

Even though Polish legal system does not know the institution of a private foundation whose purpose is to manage assets to the benefit of private individuals, or the institution of trusts, it is possible to use either of them to avoid the tax on inheritance and donations on the part of a Polish beneficiary if he changes his tax residence into the place at which the funds received are exempt from taxation.

Inheritance and Donations Tax in Poland

The inheritance and donations tax is regulated by the Polish Law on Inheritance and Donation Tax dated July 28, 1983 (consolidated text: Journal of Laws of 2009 No 93, item. 768 as amended).

According to the above-mentioned Law, the acquisition of property located within the territory of Poland or of property rights exercised within the territory of Poland is subject to the inheritance and donations tax if such acquisition results from:

- inheritance, normal provision, latter provision, specific bequest, testamentary mandate;
- donation, benefactor’s mandate;
- usucaption;
- annulment of joint ownership without consideration;
- compulsory portion of inheritance, if an eligible heir has not received it as a donation made by the bequeather, or in a way of succession, or provision;
- allowance, usufruct or easement without consideration

An acquisition of property located abroad or of property rights exercised abroad is subject to taxation if the acquiring party is a Polish citizen or has a permanent place of residence within the territory of Poland at the moment the inheritance is opened or a deed of donation is entered into.

As a rule, the taxation basis is the value of acquired property and of property rights, after deduction of debts and burdens, determined according to the status of the property or of the property rights on the acquisition day, and the market prices of the day the tax obligation arises. If there is a property damage caused by force majeure prior to the income tax assessment, the assessment shall be made on the basis of the property condition as on the day the assessment is carried out, the insurance compensation for the damage being included in the assessment base.

The applicable tax free-amounts and tax rates depend upon the allocation of the beneficiaries to one of the respective “tax groups”, as defined below.

Tax groups, as set forth by the Polish Law on Inheritance and Donation Tax Law:

spouse, descendants, ascendants, stepchildren, son-in-law, daughter-in-law, step parents, parents-in-law;
2^nd Group – the siblings’ descendants, the parent’s siblings, the stepchildren’s descendants and spouses, the siblings and siblings of spouses’ spouses, the spouse’s siblings’ spouses, other descendants’ spouses;
3^rd Group – other acquiring parties, including unrelated parties.

An acquisition of property or of property rights by a spouse, descendants, ascendants, stepchildren, siblings, or parent-in-law, step parents (i.e. persons from the “1^st tax group”, defined in detail below) is tax free, provided that:

the beneficiaries have reported the acquisition to the competent head of tax office within 6 months since the day the tax obligation has arisen, and especially in the case of acquisition by succession within the period of 6 months following the date at which the court decision stating the acquisition of inheritance became binding, and
in cases where the subject of acquisition from donation or upon donor’s instruction is money, and where the total value of the property acquired from the same person during the period of 5 years which precede the year of the most recent acquisition added to the value of the property and to the value of the property rights most recently acquired exceeds the respective tax-free amount, the beneficiaries evidenced the acquisition thereof with a proof of transfer to the acquiring party’s bank account or the acquiring party’s account kept by a savings and credit institution, or via postal order.

The above-mentioned obligation to report does not involve cases in which:

the total value of the property acquired from that person or inherited from that person during the past 5 years since the year of the last acquisition added to the value of the property and of the property rights acquired on the last order does not exceed the respective tax-free amount, or
the acquisition takes place on the basis of an agreement executed in the form of a notarial deed.

An acquisition of property and of property rights from one person is subject to taxation where the agreed value thereof exceeds:

PLN 9,637 – if the acquiring party is a person from the “1^st tax group” (defined below);
PLN 7,276 – if the acquiring party is a person from the “2^nd tax group” (defined below);
PLN 4,902 – if the acquiring party is a person from the “3^rd tax group” (defined below); * [currently EUR 1 = approx. PLN 4.2]

The excess amount constitutes the basis for the calculation of:

Excess amount in PLN:		Amount of tax due in PLN:
1) from the acquiring parties belonging to the “1^st tax group”
up to 10,278	3%	Amount of tax due in PLN:
over 10,278	up to 20,556	308.30 and 5% of the amount exceeding PLN 10,278
over 20,556		822.20 and 7% of the amount exceeding PLN 20,556
2) from the acquiring parties belonging to the “2^nd tax group”
	up to 10,278	7%
over 10,278	up to 20,556	719.50 and 9% of the amount exceeding PLN 10,278
20,556		1,644.50 and 12% of the amount exceeding PLN 20,556
3) from the acquiring parties belonging to the 3^rd tax group”
	up to 10,278	12%
over 10,278	up to 20,556	1,233.40 and 16% of the amount exceeding PLN 10,278
over 20,556		2,877.90 and 20% of the amount exceeding PLN 20,556

Trusts and private foundations have been lately among those most desirable remedies against increasing taxation all over the world. It seems that the above-said institutions are the best legal options to avoid the uncomfortable burden. However, regarding Polish taxation reality, those legal options may only by profitable if a taxpayer changes his/her residence in order to decrease the tax obligations. When it comes to making a decision, for example, Switzerland is an excellent jurisdiction of choice not only because it is generally considered to be a tax-friendly country but also due to its political stability and the various tax exemptions or reductions available.

Trusts

A trust – a common law institution derived from the Middle Ages feudal system is a type of a tax entity created by an individual person, legal person or organisational unit without legal personality to protect or to preserve the assets, and to distribute income to beneficiaries. Trusts are created primarily either by means of trust clauses in a will, the so-called testamentary trust, or a written agreement between the founder and the trustees during the founder’s lifetime (inter vivos trust) to manage the assets with the necessary care, to the benefit of the trust beneficiaries. A trust seller (founder of trust) transfers assets to a selected trustee, which means that from the date of transfer on, due to the settlement, the trustee is responsible for managing the trust and is obliged to transfer profits to beneficiaries of any kind including the founder of the particular trust. Trusts encompass all types of estate – money, properties, tangible and intangible assets. Trusts are created not only as a strategy of estate protection from creditors but also for international financial planning and preserving the beneficiaries privacy as well as for concealing assets and protecting heirs one from another.

Private interest foundation

A private foundation has nearly nothing do with its Polish definition. According to Polish law, private foundation may only be established to pillar upstanding goals, subordinate to public administration rather than the founder. A private interest foundation based on European civil law jurisdictions, is an interesting alternative to trusts. The private interest foundation registered as a legal personality could be defined as a legal entity, formally constituted, to acquire a patrimony that should be managed and protected in accordance with the will of the founder. Private interest foundations are established mainly in Lichtenstein, Panama and Austria and The Netherlands. The foundation has beneficiaries who are ultimately entitled to the assets and income of the foundation. The creator of the foundation is allowed to steer the foundation by being appointed as a financial adviser or protector[1]. A private interest foundation is considered to be a very interesting finance-managing tool due to:

security,
favoured inheritance taxation,
profitable taxation of future gains from existing firms.

A contribution to the foundation does not mean that any shares or stocks will be accomplished. Therefore, all privileges are purely personal and neither the founder nor beneficiaries are submitted to execution.

The major difference between a foundation and a trust is that in the case of a foundation the legal owner of the foundation’s assets is the foundation itself, a separate legal entity (usually) based in a nil tax jurisdiction. This is different to the situation of a trust where the underling owners of trust assets are the (presently entitled) beneficiaries, which causes a significant impact in terms of tax liability.

It is important to note that the establishing of a foreign (i.e. non-Polish) private interest foundation is not beneficial to Polish residents from a purely tax perspective, as any benefits paid out to the Polish resident would be qualified as a benefit obtained from an unrelated party, thus falling into the 3^rd tax group, mentioned above. As a result, any payment from such source would fall under the progressive taxation, reaching up to 20%. However, such a foreign private interest foundation may be used if other, non-tax-related considerations are of prime importance for the interested parties, or of the future beneficiaries would consider change of their tax residence prior to obtaining of any payments.

Lump sum taxation

As already mentioned, trusts and private interest foundations may only be profitable to Polish taxpayers considering future change of their tax residence. The noticeable solutions in tax optimization for individuals with high income is a lump-sum taxation regime in Switzerland, which may be chosen instead of the normal progressive income tax. Foreigners with absence of more than 10 years or who take up residence in Switzerland for the very first time, and do not carry out any profitable activity in this country, will be deemed eligible to taxation under this special regime, also called forfait fiscal (French) or Pauschalbesteuerung (German). Several Swiss cantons have unofficial minimums fixed for the taxable income before they grant particular residence, which as a rule, is not less than CHF 150,000 a year to be eligible. As part of the fiscal arrangement between the taxpayer and authorities of the taxpayer’s residing canton, particular taxpayers indicate the costs of living expenses and then individually negotiate the amount of tax to be paid. However, it is common that the tax amount is usually the quintuple of the annual housing rent value paid by the taxpayer. Moreover, the advantage of the lump sum taxation is that there is no obligation to disclose the actual amount of income or the value of property owned by such a taxpayer to the Swiss fiscal authorities. Since the Swiss legislation imposes limitation to minimum tax amount, the attractiveness of the lump sum taxation might be appreciated by taxpayers receiving high income from non-Swiss sources. https://gessel.pl/en/in-memoriam-dr-janusz-fiszer-2/

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