From time to time, every entrepreneur and individual should check that their important personal legal documents have been drawn up and are up to date. These include, for example, a prenuptial agreement (“prenup”), a continuing power of attorney and a will.
PRENUP
A prenup is a legal contract between spouses that helps them control their marital rights during their marriage as well as after their marriage ends either through divorce or death. A prenup can be made either before or during marriage. A prenup is a formal legal document, and as such, it must be done in writing, dated, and signed. In addition, two impartial witnesses must certify the authenticity of signatures. The prenup must also be registered with the Digital and Population Information Agency for the prenuptial agreement to enter into force.
MARITAL RIGHT IN MARRIAGE
In Finland, the matrimonial property system is based on the principle of property separation, which means that both spouses have their own assets and their own debts. Property can also be jointly owned if it was bought in the names of both spouses or received, for example, as a gift. Even in this case, the spouses basically own the property in fractions. The marital right occurs only after the marriage ends in divorce or the death of the other spouse. In this case, the spouses' matrimonial property is equalized in the division of assets so that the spouse with more matrimonial property pays the less wealthy spouse compensation, so that both are left with an equal share of the total matrimonial property. In the division of matrimonial property carried out after the death of one of the spouses, the wealthier widow is not obligated to pay compensation to the heirs of the deceased spouse.
WHAT CAN BE AGREED IN A PRENUP?
A prenuptial agreement should always be considered before marriage. With a prenup, it is possible to secure the preservation of one's own current property or , for example, property received as an inheritance or a gift in the future, in a possible divorce situation. It is also possible to change or cancel the prenuptial agreement afterwards if both spouses are willing to do so.
With a prenup, it is possible to either exclude both spouses from the marital right to all the property of the other spouse or, alternatively, only to a part of the property. It is also possible to make the prenuptial agreement unilateral, in which case one of the spouses has marital rights to the property of the other, and the other has no right to either any property of the other spouse or to a specific asset.
It is also possible to agree that the spouses’ marital rights are limited only in the event of divorce, but not in the event of death. It is important to note that a prenup can significantly influence tax planning concerning inheritance taxation between the spouses, because the compensation paid in the division is tax-free. A prenup can also affect taxation of capital gains and transfer taxation when property is divided between spouses either in a divorce or after the other spouse has passed away.
FISCALES HELPS TO PLAN AND DRAW UP A PRENUPTIAL AGREEMENTS
It is recommended to always draw up a prenuptial agreement with the help of an expert. In addition to the fact that the prenuptial agreement is a legally binding contract, it is also necessary to be careful in the wording of the prenuptial agreement so that the agreement corresponds with the purpose the spouses have in mind. If the content of the contract is not thought carefully, the contract can be open to interpretation, which can lead to disputes afterwards.
CONTINUING POWER OF ATTORNEY
In comparison to a traditional guardianship, a continuing power of attorney (“CPA”) is amore flexible and easier way to organize the management of one's affairs in case one becomes unable to take care of them. A CPA can be made by an adult who understands its contents and meaning. This is why it should be drawn up when the person is still healthy and legally competent.
NUMBER AND DUTIES OF AUTHORIZED PERSONS
A continuing power of attorney is a document with which a person (donor) can authorize in advance one or more persons (donee) of their choice to represent the donor in matters concerning property and financial matters in a situation where the donor is no longer able to manage their own affairs by themselves due to poor health or illness. In addition, the donee can be authorized to handle other than financial matters concerning the donor in the situation that the donor no longer understands their meaning.
In a CPA, either one person can be named to handle all matters, or alternatively, different tasks can be assigned to different authorized persons. In addition to the primary authorized representatives, it is recommended to name one or more alternative and secondary authorized representatives in case the primary authorized person is temporarily prevented from performing the task, or if the primary authorized person does not accept the task at all or has to give it up later. It is a good idea to prepare for possible situations of disability by also including disinterested deputy representative from outside the family in a CPA, who can represent the person in potential situations where there is a conflict of interest.
CONFLICTS OF INTEREST AND PROVISIONS REGARDING PROPERTY MANAGEMENT
Conflicts of interest can arise, for example, in situations concerning the transfer of property and in situations related to division of assets and inheritance. In principle, the authorized person may not donate the property of the principal. However, it is possible to deviate from this prohibition of donations if a disinterested representative has been named and permission to donate property has been given in the continuing power of attorney. However, the order regarding the donation must be precisely specified, and the disinterested representative must assess whether the donation is in the best interests of the principal.
The provisions of a CPA regarding property and financial matters cover, for example, managing the bank affairs of the donor, selling and buying movable property as well as representation in the authorities and, for example, at the general meeting of the limited liability company. So-called matters concerning the person mean decisions related to the health and medical treatment of the principal.
Since a CPA gives broad rights of representation to the authorized person, very detailed provisions on the management of property and affairs, such as the sale of realties, gifts from the donor’s funds, the authorized person's remuneration and reimbursement of expenses, and monitoring of the authorized person's activities can be included.
ENTRY INTO FORCE
A continuing power of attorney does not come into force immediately at the time of drafting, but only after the Digital and Population Information Agency has confirmed it. For the Digital and Population Information Agency to confirm a CPA, the authorized person must submit to it a doctor's report or other reliable statement which confirms that the donor is unable to manage their own affairs due to a weakened state of health.
FORMAT REQUIREMENTS FOR A Continuing POWER OF ATTORNEY
A continuing power of attorney must be drawn up in writing and in specific format. A CPA must be signed with two impartial witnesses present at the same time. A CPA must also meet certain other formal requirements to be considered a CPA - as distinct from a standard power of attorney.
FISCALES HELPS IN PLANNING AND DRAWING UP THE CONTINUING POWER OF ATTORNEY
We will help with all questions related to the design and preparation of a continuing power of attorney. From us, you can get advice on what kind of matters a private person or entrepreneur should take into account in a CPA, so that, for example, their company's affairs are managed, or a generational transfer of the company is possible, even if the owner-entrepreneur loses their legal capacity as a result of an accident.
TESTAMENT
A testament is the main document for inheritance planning. Without a testament, the estate is distributed upon the persons death to the legal heirs according to legislation. If there are no legal heirs, the estate goes to the state. By drawing up a testament it is possible to change the statutory order of succession or determine how the estate is divided between the heirs. Furthermore, it is possible to secure, for example, the financial status of the widow with a testament. However, generally, descendants have the right to their legal share. With the help of a testament, it is also possible to have a very significant influence on the amount of inheritance tax.
WHO WILL INHERIT WITHOUT A TESTAMENT?
Code of Inheritance determines the legal order of succession. It is essential to note that without a will the spouse does not inherit the deceased spouse, if the person has descendants (i.e., children, or grandchildren if the deceased’s child has died before them). If there are no biological heirs, but the deceased was married, then the spouse first inherits the deceased spouse with limited ownership rights. This means that after the death of the widow, the remaining property is first divided between the deceased spouse's secondary heirs and the widow's heirs, as a rule, in half. However, there are exceptions to this general rule.
If the deceased has no biological heirs or a spouse, the estate goes to the parents of the deceased. Siblings come instead of deceased parents and the children of the siblings take their place. If a person does not have children nor a spouse, but their own siblings and siblings' children are considered close, it can make sense from a tax planning point of view to allocate the estate directly to siblings or siblings' children, so that the estate does not incur inheritance taxation multiple times in short period of time.
It is good to remember that the right of inheritance does not extend to cousins. If cousins are the closest living relatives of the deceased, the inheritance goes to the state, unless there is a testament.
IN WHICH SITUATIONS SHOULD YOU MAKE A TESTAMENT?
You should consider drawing up a will in at least the following situations:
- you are married or cohabiting and want to protect your spouse's status
- you live in a blended family that includes your own and your spouse's children
- you want a specified asset, for example a company or real estate, to go to a specific person
- you wish to assign assets to charity
- you want to assign property to your grandchildren over a generation
- you want to exclude the marital right of your heirs' spouses to the property inherited from you
TAX PLANNING WITH TESTAMENT
An expertly prepared testament can both secure the fullfilment of the last will and affect the amount of inheritance taxes. The amount of inheritance taxes for heirs can be influenced, for example, by splitting assets to several different beneficiaries, e.g. over generations. Also assigning property with the right of use and possession can in certain situations be a functional and tax-efficient way to secure, for example, the position of the widowed spouse.
The right of use and possession means that the holder of the right of possession can use the object of the right of possession free of charge and enjoy its income. Inheritance tax does not need to be paid for the right of use and management. Since the right of use and possession burdens the heir who receives the property with the right of ownership, the recipient of the right of ownership receives a deduction to their inheritance tax. However, rights of use and possession are not suitable for all situations and can cause problems with certain types of assets, especially if the legal position of the recipient of the right of use and possession and ownership rights in different situations has not been notified when preparing the will.
HOW TO DRAW UP A TESTAMENT?
A testament is a formal legal document. Violation of the formal regulations leads to the invalidity of the testament. A will can be made by a person who understands the content and meaning of the document. A testament must be made in writing and two impartial witnesses must attest to the signature of the testator by being present at the same time. For a person’s last will to be fulfilled in the desired way and to avoid disputes in the interpretation of the will after death, it is recommended to draw up the will with the help of a professional.
FISCALES HELPS IN COMPREHENSIVE INHERITANCE TAX PLANNING AND PREPARATION OF PERSONAL LEGAL DOCUMENTS
The experts at Fiscales can help with all your questions related to the planning and drafting of a prenuptial agreement, a continuing power of attorney and a testament.
When preparing a will, prenup or continuing power of attorney, it is recommended to check existing personal legal documents. If the spouses have, for example, a valid prenuptial agreement and a mutual will, it is recommended to review how the documents work together, for example, from inheritance taxation point of view.
From us, you can get advice on comprehensive inheritance planning, which considers your family and wealth situation as well as related legal and fiscal aspects, such as questions related to asset transfers and structural planning, the effects of various personal legal documents, which are important to consider in inheritance and wealth planning.
