The practice of wealth management and estate planning have become very important for individuals desiring to put their assets, liabilities, debts in order and create a working plan for its efficient management and eventual distribution during a lifetime and upon the individual's death or incapacitation. Wealth management entails a holistic approach to administering an individual's assets, and includes investment advice, retirement planning, estate planning, etc. In recent times, high net worth individuals now understand that without proper planning for the administration of legacies acquired during the pursuit of success, such legacies may either go to unintended persons or may not be managed in a manner that will protect and maximize its value. Therefore, there is an imminent shift from solely planning towards devolution of assets upon demise or incapacitation, to putting in place a personalised wealth management strategy while alive. This way, the individual's assets are properly managed to ensure maximization and preservation for several generations. This article which is the first in this series will extensively discuss (i) Wills and (ii) Deed of Gifts, as well as their respective tax considerations. The concluding part of this series will focus on Trusts as another mode of estate planning.
What Does Estate Planning Entail and Why is It Important?
Estate planning is the process of deciding how the assets of a person can be managed and distributed in not just an orderly but profitable manner during his/her lifetime and in the event of his/her death or incapacity. It entails much more than preparing a Will which appears to be the conventional document many are used to with regards to planning estates. An estate plan covers risk and financial management towards an eventual transfer of assets during and after a person's lifetime. Of course, proper planning takes cognizance of events such as retirement, incapacitation (due to bad health or unforeseen circumstances), life insurance policies, provisions for minors, etc, some of which could take effect immediately the asset is created or after the death of the owner.
There are numerous advantages of estate planning such as:
- The ability of the respective individuals/families to conduct a full inventory of their assets and debts - this helps the respective individuals to create a sustainable plan for settlement of debts and seek ways to financially maximize the estate for the benefit of the beneficiaries.
- Making informed decisions regarding management and distribution of assets.
- Simplifies the administration of the estate of a deceased person and ensures that the assets are passed to the intended beneficiaries.
- Minimises the risk of disputes and litigation which often arise from failure to create a clear plan on the administration and management of a deceased's estate.
- Places assets within the control of persons who would ensure the optimal utilization of such assets and maximize its value.
- Provides the opportunity to give funeral directives and assign funds for that purpose to prevent waste and depletion of assets.
- Allows an individual to adopt the most tax-efficient mode to transfer assets.
Options Available for Planning an Estate
- Will, and/or
- Deed of Gift, and/or
OPTION A - WILLS
A Will is a testamentary document, voluntarily made by a testator of sound disposing mind, executed in the presence of two (2) attesting witnesses. It is a legal document created by a person ("testator") indicating how his/her estate should be administered or managed upon death. A testator (through the Will) usually appoints executors who could be private individuals or companies to administer the Will. It is ambulatory which means it can only take effect upon the death of the testator, and therefore does not confer benefits on beneficiaries while the testator is alive. A Will can therefore be revoked or amended at any time before the death of the testator.
Benefits of Making a Will:
A Will which is properly drafted provides the appropriate protection to beneficiaries and gives the testator ease of mind in the conduct of his/her affairs after his/her demise. Some benefits of executing a Will include:
- Circumvention of the application of intestacy laws to the estate: A person who dies without a Will or any legal arrangement to manage his/her assets is said to have died "intestate". When this occurs, intestacy laws of the place of domicile of the deceased will be applied in the administration of the estate. Intestacy laws are known to be cumbersome, lengthy, and expensive and may not favour or include the beneficiaries the deceased would have if he had created a Will. By creating a Will, the deceased's estate will be distributed strictly in accordance with his/her stipulated wishes and not in accordance with the intestacy laws.
- Minimises disputes or litigation that could arise especially amongst family members on the administration of the testator's estate after the testator's death.
- Allows the testator to appoint competent persons (executors), who would ensure that the assets of the estate are properly managed and distributed in accordance with the Testator's wishes.
Requirements for a Valid Will:
Under Nigerian law, a Will is valid and admitted to probate, when it complies with the provisions of the relevant Wills law. The applicable Wills Law depends on the State where the testator was domiciled.
The requirements for the creation of a valid Will under the Wills Law of Lagos State1** include the following:
- The Will must be in writing. It can be in any language and does not necessarily need to be in English.
- The person making the Will must be of legal age. The Wills Act states 21 years as the legal age, but the Wills Laws of Lagos State sets the legal age as 18.2
- The Will must be signed by the testator. The signature should be positioned at the end of the document. Any disposition located after the testator's signature is invalid.
- The testator's signature must be made or acknowledged in the presence of at least two witnesses, who must be present at the same time. The witnesses must attest to the Will in the presence of the testator. A witness should however not be a beneficiary under the Will, because they will lose any benefit given under the Will.
- The testator must have the mental capacity to understand the nature of what a Will is and that he/she is disposing of his/her property.
- The Will must be voluntarily made by the testator without any form of undue influence from third parties.
The creation of a Will is however not without its challenges. For example, there are certain restrictions in law on what a testator can dispose of by a Will, the restriction could be statutory, customary, or religious (for instance, Islamic law places certain restrictions on the property a testator who is a member of the faith can dispose of by Will). Also, it is important to note that only assets solely held by the testator are capable of being distributed under a Will.
The procedure regarding the admittance of a Will to probate can also be cumbersome, as such; the Will may not be effective until a long period of time. The procedure varies from state to state, however the procedure in Lagos is as follows:
- Lodgement of the Will at the Probate Registry of the State High Court during the lifetime of the Testator.
- Upon knowledge of the testator's death, the Will is to be opened and read to interested persons at the Probate Registry by the Probate Registrar.
- After the reading of the Will and in the absence of any opposition to the validity of the Will, the appointed executors can proceed to make an application for the grant of probate.
- A publication is made in a national newspaper notifying the public of the proposed Executors of the estate. The Probate Registry will thereafter wait for a determined period for the filing of any opposition to the grant of probate by interested persons.
- After the submission of the application for grant of probate, the valuation unit of the Probate Registry will carry out its valuation of the testator's assets (both liquid assets and real estate) to assess the estate duty payable on the testator's estate.
- Where the Probate Registrar is satisfied with the authenticity of the Will, probate will be granted in respect of the Will.
The procedure for the grant of probate depends on whether the application for grant is contentious or non-contentious in nature. Where the grant of probate is contentious, there is likely to be a probate action in court and the grant or refusal of the grant of probate will be dependent on the outcome of the court action. This is essentially a longer process, that can possibly in some cases take several years.
Asides the issue of the probate application being contentious, it is important to note that, generally, the grant of probate could be a cumbersome process due to bureaucratic bottlenecks on the part of the probate officials and in other cases, circumstances outside the control of the officials. For example, the destruction of certain parts of the Lagos High Court during a recent civil unrest and protest affected the Probate Registry which set the registry aback for a while in 2020.
Tax considerations applicable to Wills in Nigeria
In Nigeria, the distribution of an estate under a Will has minimal tax implications in comparison with other jurisdictions. Some of the taxes applicable include:
- Estate Tax - The estate of a deceased person will be liable to pay the applicable Estate Tax/levy. This is usually calculated as a certain percentage of the value of the entire estate of the testator. It is important to note that the percentage payable as Estate tax varies from State to State, as it is determined by the State government where the testator was domiciled. This fee is payable once the executors of the respective deceased's estate begin the administrative process for the approval to execute the estate at the Probate Registry.
- Personal Income Tax - In addition to estate fees, the estate may be liable to pay personal income tax where there are income arising or due to the estate.3 It is however important to note that monies received by the beneficiaries or executors as death gratuities or as consolidated compensation for death or injuries are expressly exempt from personal income tax.4
OPTION B - DEED OF GIFT
A gift can be defined as the voluntary transfer of a property to another individual, without making any payment for the property. A Deed of Gift is a document created by the owner of a property ("Donor") for the transfer of legal ownership of an asset to another person ("Donee") without any purchase fees.
An individual has the option of gifting assets he/she solely owns (or partitioned) to designated individuals during his lifetime. Unlike a Will which takes effect upon the death of the testator, a gift takes effect immediately, and physical possession can be taken by the donee. The downside to this however is that the donor loses all claims to ownership of whatever has been gifted and may be unable to benefit from such gift in his/her lifetime. A Deed of Gift is generally irrevocable. However, where it is proven that there are indications of fraud, misrepresentation, lack of mental capacity, etc., the court may be invited to clearly interpret the intentions of the Donor.
One of the major advantages of a Deed of Gift is that it takes effect immediately, that is during the lifetime of the Donor. Therefore, it provides sufficient legal protection to the Donee upon the Donor's death as well as serves as legal proof of transfer of the subject property.
Tax Considerations Applicable to a Deed of Gift in Nigeria
The tax implication of a deed of gift is minimal. A gift is not subject to capital gains tax or personal income tax. It should be noted however that in Nigeria, Stamp Duties apply to a deed of gift as it is required to be registered as a transfer instrument.
It should also be noted that under the Land Use Charge5 , a gift of real property in Nigeria must be registered and consented to by the Governor of the relevant state. As such, the requisite registration fees and consent fees will apply for transfer of real property. Section 7 of the Land Use Act however outlines that Governor's consent shall not be granted over a transfer of title to a person under the age of 21 (twenty-one) years.
For a speedy and cost-effective process of eventual property transfer, it is important to consider the various forms of estate plan. This part of the series has discussed Wills and Deed of Gift. The subsequent part of this series will discuss the option of setting up a Trust. The mode of estate planning to be adopted is dependent on several factors including but not limited to age of the intended beneficiaries, value, and extent of asset to be distributed, tax implications, ease, maximization of the estate value, etc.
The information provided in this article is generic in nature and not made to address specific circumstances. Therefore, professional assistance is recommended to assist interested individuals navigate the different considerations and provide a favourable structure to meet respective needs.
1 Section 4 Wills Law of Lagos State (** assuming the testator lived & died in Lagos)
2 Section 3 Will Law of Lagos State
3 Section 1(b) Personal Income Tax Act.
4 Items 1 & 23, Third Schedule, Personal Income Tax Act.
5 Section 22 Land Use Act 1978
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.