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Expats who have assets or spouses in China need to make wills
By Sean Maguire |
October 26, 2009, Monday
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IT seems a week cannot pass without some well-intentioned journalists with plenty of time on their hands exhorting us to seize the day and wring every last bit of adventure and excitement out of what they presume are our dull little lives.
Such exhortations typically take the form of a litany of "20 things to do before you're 40" or, more depressingly, "30 things to do before you die," and usually involve some bizarre or exotic fantasy that will fizzle out into a dreary and time-consuming anti-climax once the reality button has been pressed.
Apart from being told the obvious - learn another language, bungee jump, live in another country, eat a monkey burger or perhaps give autotrepanation (drilling a hole in one's skull) a try, one obvious bit of advice is conspicuously absent from this list of glib injunctions: write a will.
Obvious as it may seem, putting one's affairs in order (as a certain class of by-gone English were once want to say) is something we are simply not much good at on the whole.
In the UK, for example, one in three people dies intestate, that is, without making a will. And it is not only the Brits who are reluctant to confront the stark truth of their own mortality.
Abraham Lincoln, a lawyer by training, died intestate. Supreme Court Justice Warren Berger, left only a short one-page will which did not have any specific powers granted to his executors.
Costly probate
Nor is it only lawyers who make such blunders: the rich and famous with vast and conspicuous fortunes are often prone to err - recent reports suggest that Michael Jackson's will may take years to unravel, much to the delight of a host of grateful lawyers, no doubt.
On a rational level, writing a will is a perfectly sensible thing to do, but it is more than just a bit of existential housekeeping; it is a practical measure readily available to those who wish to reduce the burden that their death can cause to their next of kin.
Probate - the process by which a will is authenticated or an intestate person's estate is administered - can be a costly and time consuming business.
The fictional case of Jarndyce and Jarndyce as described by Charles Dickens in his novel "Bleak House" is a somber recognition of how probate matters can spiral out of control.
This is particularly true for expats who have assets in China or perhaps have Chinese spouses.
The labyrinthine complexities of distributing these assets post-mortem would render Dicken's case a high water-mark in legal simplicity and efficiency.
On top of this there is the emotional cost to spouse and children. At their most vulnerable and emotionally frayed, they are confronted by a quagmire of administrative issues generated by intestacy.
Dividing up the deceased's estate at such a troubled time can render wounds which will never heal as interpretations of the deceased's presumed wishes collide in fits of grief-laden recrimination.
So why are we so reluctant to put our house in order and save our nearest and dearest the trouble of dealing with the turmoil we may well leave behind?
Life and death
Within the animal kingdom, human beings are unique in being able to recognize the inevitability of their own deaths, but, sensibly, we go about our daily business with only a peripheral sense of our own mortality.
There are good arguments to suggest that anyone of sound mind should spend every cent they can and leave nothing, but for those who take a more altruistic view, bringing one's own mortality into focus is the first step in recognizing that life will go on without one and that, consequently, the material possessions one has acquired should not simply be abandoned to the demi-gods of the probate courts, but should be distributed in a manner that one decides oneself.
Taking a ride in a gondola in Venice, learning how to cook a cordon bleu dinner, going down a waterfall in a barrel are all very exciting and no doubt fun things to do before one shuffles off this mortal coil, but then life is not all about fun, is it?
(The author is counsel of AllBright Law Offices in Shanghai. The views are his own. His e-mail: sbmaguire@allbrightlaw.com.)
Such exhortations typically take the form of a litany of "20 things to do before you're 40" or, more depressingly, "30 things to do before you die," and usually involve some bizarre or exotic fantasy that will fizzle out into a dreary and time-consuming anti-climax once the reality button has been pressed.
Apart from being told the obvious - learn another language, bungee jump, live in another country, eat a monkey burger or perhaps give autotrepanation (drilling a hole in one's skull) a try, one obvious bit of advice is conspicuously absent from this list of glib injunctions: write a will.
Obvious as it may seem, putting one's affairs in order (as a certain class of by-gone English were once want to say) is something we are simply not much good at on the whole.
In the UK, for example, one in three people dies intestate, that is, without making a will. And it is not only the Brits who are reluctant to confront the stark truth of their own mortality.
Abraham Lincoln, a lawyer by training, died intestate. Supreme Court Justice Warren Berger, left only a short one-page will which did not have any specific powers granted to his executors.
Costly probate
Nor is it only lawyers who make such blunders: the rich and famous with vast and conspicuous fortunes are often prone to err - recent reports suggest that Michael Jackson's will may take years to unravel, much to the delight of a host of grateful lawyers, no doubt.
On a rational level, writing a will is a perfectly sensible thing to do, but it is more than just a bit of existential housekeeping; it is a practical measure readily available to those who wish to reduce the burden that their death can cause to their next of kin.
Probate - the process by which a will is authenticated or an intestate person's estate is administered - can be a costly and time consuming business.
The fictional case of Jarndyce and Jarndyce as described by Charles Dickens in his novel "Bleak House" is a somber recognition of how probate matters can spiral out of control.
This is particularly true for expats who have assets in China or perhaps have Chinese spouses.
The labyrinthine complexities of distributing these assets post-mortem would render Dicken's case a high water-mark in legal simplicity and efficiency.
On top of this there is the emotional cost to spouse and children. At their most vulnerable and emotionally frayed, they are confronted by a quagmire of administrative issues generated by intestacy.
Dividing up the deceased's estate at such a troubled time can render wounds which will never heal as interpretations of the deceased's presumed wishes collide in fits of grief-laden recrimination.
So why are we so reluctant to put our house in order and save our nearest and dearest the trouble of dealing with the turmoil we may well leave behind?
Life and death
Within the animal kingdom, human beings are unique in being able to recognize the inevitability of their own deaths, but, sensibly, we go about our daily business with only a peripheral sense of our own mortality.
There are good arguments to suggest that anyone of sound mind should spend every cent they can and leave nothing, but for those who take a more altruistic view, bringing one's own mortality into focus is the first step in recognizing that life will go on without one and that, consequently, the material possessions one has acquired should not simply be abandoned to the demi-gods of the probate courts, but should be distributed in a manner that one decides oneself.
Taking a ride in a gondola in Venice, learning how to cook a cordon bleu dinner, going down a waterfall in a barrel are all very exciting and no doubt fun things to do before one shuffles off this mortal coil, but then life is not all about fun, is it?
(The author is counsel of AllBright Law Offices in Shanghai. The views are his own. His e-mail: sbmaguire@allbrightlaw.com.)
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