WHAT HAPPENS WHEN THE SHAREHOLDER OF A BVI BUSINESS COMPANY DIES?
Under BVI law the shares of a BVI Business Company are BVI “situs” assets. This means that they are treated as property physically located in the BVI. When a shareholder dies, the shares of the BVI Business Company form part of the deceased’s BVI estate. The process of distributing the shares to the deceased’s heirs varies depending on whether or not the deceased had a Will.
If the shareholder died with a Will:
The deceased’s shares cannot be distributed until the deceased’s BVI Will or foreign Will are probated by the BVI courts. Probate is the process by which the court will appoint an executor to execute the terms of the deceased’s Will.
As with the probate process in other countries, the contents of the deceased’s Will becomes public as does the identity of the heirs under the Will. The process can take several months. During this time bank accounts and investment accounts may be frozen. As at January 2020 the estimated cost of probating a Will in the BVI in respect of the shares of a BVI Business Company is approximately $10,000.
If the shareholder died without a Will:
Should the deceased die intestate (meaning without a Will) or the foreign Will makes no mention of the BVI Business Company shares, then the process can be more complicated and costly than if the deceased died with a Will. The BVI court will appoint an administrator to deal with the BVI property of the deceased in accordance with applicable law. The risk is that the deceased’s shares will be distributed under the intestate laws of the deceased’s domicile rather than in accordance with the deceased’s wishes.
CAN THE DIRECTORS SIMPLY TRANSFER THE SHARES TO THE HEIRS WITHOUT GOING THROUGH PROBATE?
No! The directors cannot interfere with the assets of the deceased. Should a transfer of shares occur without a probated Will or the appointment of an administrator, legal action and substantial fines may result. The directors may also be personally liable for any loss that may have resulted from the transfer of shares.
Shareholder Administered Succession Trust
One option that is becoming increasingly popular is for the shareholder to appoint himself or herself along with one or more other persons to hold shares as trustees for the benefit of the original shareholder and those that he or she wishes to inherit the shares. The individuals are referred to as beneficiaries as they receive the benefit of the trust. The original shareholder will name someone (who could be a beneficiary) to be the trustee together with the original shareholder. After the death of the original shareholder the surviving trustee can distribute the shares to the beneficiaries by simply furnishing proof of death of the original shareholder, a certified copy of the trust and the due diligence documentation applicable to each beneficiary as required of any new shareholder of a BVI Business Company. Since the shares have been settled in a trust, they do not form part of the estate of the original shareholder. Consequently, there is no need to probate the original shareholder’s Will in order to distribute them to the beneficiaries. It is important that there is always one joint trustee who survives the death of the original shareholder. If there is no surviving trustee, it will be necessary to obtain probate of the estate of the last surviving trustee in order to transfer the shares to the intended beneficiaries.
The advantages of this approach is:
- No need for probate (provided that there is at least one surviving trustee after the death of the original shareholder)
- The shares can be transferred quickly ensuring that the company continues to run without the possibility of frozen bank accounts or investment accounts
- The trust deed is confidential and will not be made public
- The original shareholder can specify who will receive his or her shares and the number of shares that he or she will receive
- The trust is revocable and the shares can be transferred out of the trust and back into the original shareholder’s name whenever the shareholder chooses
By way of example, a shareholder wishes that his children receive the shares on his death. He could name his spouse or one of his children as joint trustee. On the death of the original shareholder, the surviving trustee could have the shares registered in the names of the beneficiaries as described above and providing the registered agent with the required documents.
The cost of implementing such a trust through Coverdale is a one time fee of $500, plus $85 courier fee to courier the new share certificates to you.
Spending $500 now can save $10,000 later.
Owning Shares as a Joint Tenant
Another option would be for the shareholder to register the shares in his name as joint tenant with right of survivorship with the person that he wishes to receive the shares after his death. Upon death, the deceased shareholder’s interest in the shares expires and the surviving joint tenant becomes the sole owner of the shares.
There are a number of disadvantages to this option. First the joint shareholder would be entitled to participate in voting the shares, to receive dividends and to participate in the benefits of other shareholder rights. Second the joint shareholder could unilaterally end the arrangement and cause the joint shareholder’s portion of shares to be held by the joint shareholder outright. Lastly, the joint shareholder’s interest in the shares would be subject to the claims of his or her creditors.
For example, Mr. John Chu is the sole shareholder of a BVI Business Company. He wishes his BVI Business Company to pass to his daughter Vivian upon his death. If he registers his shares as being owned by “John Chu and Vivian Chu as joint tenants with right of survivorship” his interest in shares will expire upon his death. After Mr. Chu dies, Vivian would be entitled to have the shares registered in her sole name without having to probate her father’s Will in the BVI. However, prior to her father’s death Vivian would be entitled to receive half of any dividends paid by the company and to participate in all shareholder votes. Also, if she becomes bankrupt or sued (for example by a spouse under divorce proceedings) her interest in the shares could be seized by her creditors, even while her father is still living. Vivian could also unilaterally sever her joint interest and become the holder of half the shares outright.
Making a BVI Will
A BVI Will that deals only with BVI situated assets such as BVI Business Company shares is sometimes used as a planning tool where privacy is the main concern. After the shareholder’s death, the application for probate would only disclose the terms of the BVI Will and the identity of the heirs to the BVI property rather than the terms of the deceased’s general Will and identity of the heirs to the entire estate. The BVI Will can only be effective in the BVI if it is also valid under the law of the deceased’s domicile. If it is not valid under that law then it will not be valid in the BVI. However, the cost and delays involved remain the same as when shares pass under a general Will.