Question

A friend’s husband passed away earlier this year, and the executor says it will take at least three years for his estate to be wound up because he owns shares in America and the UK. This does seem rather long. 

We also have investments in both the USA and UK. What can we do to ensure that we do not have these delays?

Answer

The winding up of an estate where there are offshore assets does take a long time. I have heard of estates with foreign assets taking as long as eight years to be wound up. 

The problem that you have is that your original will must be sealed and sent to each country where your husband owned assets (in some countries a certified copy may suffice).  Your executor needs to appoint an attorney in that country to apply for a grant of probate. This will allow your will to be recognised in that country so that those assets that are located there may be disposed of. 

This can be quite a messy and time-consuming exercise as there are lots of supporting documents that will be needed to get the grant of probate approved.  Only then can the process of dealing with the foreign assets be started.

In addition to the time taken, the transfer of foreign assets can be very costly.  In South Africa, executor fees are capped at just over 4% while there is no cap on overseas fees.  You will pay the overseas attorneys the hourly rate which, when you take the exchange rate into account, can be quite high. Some of the executors I’ve spoken to say that the disposal of offshore assets adds a further 6% to the executor fee.  This means that the disposal of your offshore assets could cost you around 10% in executor fees.

In addition to the executor fees, you may be liable for situs tax on these shares.  This is sometimes known as an inheritance tax.  These are typically around 40%.  In the UK, this is triggered once the assets are larger than 325 000 pounds (R7.5m).  The threshold for triggering the tax in the USA is a lot lower at $60 000 (about R1m).

Capital gains tax will also have to be paid on these investments because South Africa taxes you on your worldwide assets.

In addition to adding a lot of time to the finalization of the estate, you could see the investment more than halved in value once these various taxes and costs are considered.

Solution

There is a solution that could both speed up the transfer of the assets to your beneficiaries and also save you a lot of money in terms of taxes and executor fees – move the offshore investments into an offshore based sinking fund.  This will trigger the immediate payment of CGT but the benefits of doing this will be significant:

1. As you can attach a beneficiary, the transfer of ownership will be quick -usually a month to sort out the paperwork. It is not dependent on the finalization of the estate.
2. You do not have to apply for a grant probate which will save you around 6% in legal fees
3. You do not pay executor fees as the transfer of the asset is done through a beneficiary nomination. This will save you a further 4% in fees.
4. You will pay SA estate duty of between 20% and 25% instead of situs tax of up to 40%. This would not have to be paid till the death of the last spouse which is not always the case with situs tax.
5. You do not pay CGT when the ownership of a sinking fund is transferred. It is only payable when you make a withdrawals from the fund.

As you can see, a bit of planning ahead of time can ensure that your assets are transferred efficiently and with the least amount of leakage in the form of taxes and costs.   It will make a massive difference for your loved ones.