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“Don’t Worry, It’s A Standard Contract”

DON’T WORRY, IT’S A STANDARD CONTRACT

Recently, after having found the perfect premises for our new office, we were given a thick set of documents (the Tenancy Agreement together with all the “standard” terms and conditions) and were told, “Can you please sign here, here and here?”

As lawyers, it was an occupational hazard that we just had to go through all the documents and the small fine print.

Given that it was late in the afternoon, the estate agent seemed anxious to “seal the deal” and said, “Don’t worry, this is a standard contract. All the tenants sign the same documents.” we smiled and continued reading…

Question to ask yourself: “How often have we “signed” documents without knowing the terms and conditions?”

If your reply is, “This doesn’t apply to me. I don’t sign agreements often, “would you be surprised to know that the average person signs around 12 agreements daily? This includes everything from contracts with your mobile service provider to membership forms for the gym. So, if you think you don’t sign agreements often, you will be surprised to know that most of us, signing agreements without knowing that we have done so, probably happens daily.

The term “signing documents” includes the apparent act of having your physical signature imprinted on a written document. It also includes situations when you click on the “I AGREE” or “I ACCEPT” box.

 

What are the implications of your actions?

When you sign a document, you legally agree to the terms within. By clicking on an “I AGREE” or “I ACCEPT” box, you legally agree to the terms. By doing either, you are giving up some legal rights. For example, if you sign a contract and then change your mind, you may be unable to get out of the contract without facing legal ramifications. Similarly, if you click on an “I AGREE” or “I ACCEPT” box, you agree that you have read and understood the terms and that you are legally bound to them.

 

“But that’s not fair!”

 

Unfortunate, but true!

Is there any way out of it?

Contracts are legally binding agreements between parties. There are some situations where a contract may not be enforceable even if it was signed.

 

The following are some of the everyday situations in which a contract may not be enforceable:-

  • Illegal Contracts – An illegal contract is prohibited by law.
  • Unconscionable Contracts – The contract is so unfair that it would be against public policy to enforce it.
  • Exclusion Clauses – Exclusion clauses can render a contract unenforceable if they are unreasonable. Exclusion clauses seek to absolve one party of all or part of their responsibilities and are generally considered unfair by courts.
  • Induced Contracts – Induced contracts are not typically enforceable in court. One party may have been coerced or misled into entering the agreement. The most common example of an induced contract is based on misrepresentation.

So what should we do? Well, it’s probably okay to let it go for minor matters. However, for more significant transactions, it is crucial to read and understand all the terms and conditions you agree to.  By reading the agreement, you might find some onerous clauses slipped into the “standard” agreement. In such situations, you may wish to negotiate with the other party to delete or amend the particular clause.

BASIC ACTION TIPS

  • Read the whole agreement – every clause in the agreement.
  • Do you understand what you are reading? If not, ask someone.
  • Is the clause acceptable to you? If not, try to get it deleted or amended.
  • If you don’t understand or the other party refuses to delete or amend the clause, don’t sign the agreement. Get proper advice before signing.

Speak with us over video consultation via Lawyer Anywhere for any help in reviewing a “standard contract”.

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Checklist : Estate Planning

CHECKLIST : ESTATE PLANNING

Estate planning is a necessary process that everyone should go through. It can be easy to put off, but it’s essential to have a plan in place in case something happens to you. Taking the time to plan your estate now can save your loved ones a lot of heartaches and stress later. If you don’t have a Will or if your estate planning documents are outdated, now is the time to take action. Use this checklist to start estate planning or review your current plans.

1.  Will

Make a Will – This is the most important estate planning document because it ensures your wishes are carried out and your loved ones are provided for. Without a Will, the law will distribute your assets, which may not be your wish. Without a Will, your loved ones may have to go to court to resolve disputes over your assets, which is expensive and time-consuming. Therefore, it is vital to take the time to create a Will that accurately reflects your wishes.

People often write their own Wills. Even though you can do it without a lawyer, it is strongly recommended that you work with an experienced one. A lawyer will ensure that your papers are foolproof and protect you and your family from long court probates.

Choosing an executor – An executor is responsible for managing the distribution of assets in an estate. The executor doesn’t have to be a lawyer. Your children, a family member, or a close friend can all take on this role. Once you’ve chosen an executor, you should introduce them to your lawyer, even if they won’t have to work together for years or decades. And remember that you can always change who will carry out your wishes.

Naming your beneficiaries – It is essential to name who will get your assets. It would be best if you designated a beneficiary for every asset you own. This ensures that your assets will be distributed according to your wishes in the event of your death.

 

2.  Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that appoints a trusted third party to make decisions on your behalf if you become incapacitated.

When people lose their mental capacity, they can no longer make their own decisions and must rely on others. This situation can be challenging for both the individual and their loved ones.

Without an LPA, your family will have to file a court petition to gain access to and control of your assets and finances. The court application process can be costly and time-consuming, and there is no assurance that the court will grant your family members control.

By executing an LPA, you can ensure that your wishes are carried out swiftly and efficiently if you become incapable.

 

3.  Advance Medical Directive

It’s essential to make sure family members and friends are aware of your medical treatment wishes before a health care crisis takes these decisions out of your hands.

An Advance Medical Directive (AMD), also known as a Living Will, is a legal document you sign when you are still mentally competent. This document expresses your wishes to the medical team treating you, regarding the use of extraordinary life-sustaining treatments when you are terminally ill, mentally incompetent or unconscious. By signing this document, you are giving your medical team the authority to make decisions about your care based on your expressed wishes. This can be a valuable tool in ensuring that your wishes are followed if you cannot communicate them yourself.

Making an AMD is entirely optional, and you can revoke the AMD at any time.

It is essential to understand the difference between an AMD and euthanasia. Euthanasia is the deliberate ending of the life of a person suffering from an incurable and painful disease. An AMD instructs your doctor not to proceed with extraordinary life-sustaining treatment and allows you to die naturally when you become terminally ill and unconscious while minimising suffering through palliative care and medication.

 

4.  Creating A “Need to Know” File

Once you’ve made these critical decisions, it’s important to communicate them ahead of time to those who will be most impacted.

By creating a comprehensive “Need to Know” file, you can make it easy for them to access the information they need to carry out your wishes. Your “Need to Know” should include your wishes for medical care, funeral arrangements, and other vital instructions. It is essential to keep this file up to date, as your wishes may change over time. Making these decisions in advance can help ease the burden on your loved ones during a difficult time. It can also help ensure that your wishes are carried out precisely as you desire.

FINAL TIP: Your estate plan will also need to evolve because your life circumstances are ever-evolving. Your Will and estate plan should be reviewed once every 3 to 5 years or whenever a major life change, like marriage or purchasing a property.

Speak to us over video consultation via Lawyer Anywhere for advice on your Estate Planning matters today!

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5 Secrets to Buying a Business

5 SECRETS TO BUYING A BUSINESS

When looking to buy a business, you must know what you’re getting into. Buying a business is exciting, but it can also be a minefield without the right advice. That’s why we’ve put together this list of 5 secrets to buying a business.

1.  Buy What You Know

It’s always best to “Buy What You Know”. This does not mean you need to know every single detail about the business. At the very least, you should understand the principles of the business you are buying. The best place to start is to look at an industry you are familiar with and understand. Next, make sure the business you’re interested in is something you’re capable of running. Finally, don’t forget to factor in your skillset and experience – you don’t want to jump into a business that’s too challenging for you.

 

2.  Do Your Homework

Starting a business can be a gratifying experience, but you must be upfront and honest with yourself; you’ve got a lot of homework! A few things to consider before purchasing: What is the business worth? What are the current financials? What is the company’s history? What are the potential risks and rewards? How well do you know the industry? How much money do you have to invest? Representations made by the seller may not always be accurate, so you must verify those details on your own. Check the facts before you buy.

 

3.  Get Your Finances Ready

When you’re ready to buy a business, it’s essential to have your finances in order. Unfortunately, many people mistakenly believe that the business is the only asset they need to worry about. The reality is that the business is just one piece of the puzzle.

If you’re looking to buy a business, it’s essential to make sure you’re financially ready. Financing a business can be tricky, so start by getting your finances in order. Calculate how much money you’ll need to cover the purchase price and monthly expenses, and save as much as possible.

When it comes to financing your business, you can take out a loan from a bank. You may also want to consider less traditional sources of finance, such as angel investors or venture capitalists. Friends, family, and fools may be potential sources of capital. These sources should be approached cautiously, as they may have ulterior motives or be unaware of the full extent of the investment.

 

4.  Seek Professional Help

If you are ready to buy the business, make sure you have your “acquisition team” – your banker, accountant, and lawyer – to help you. Your acquisition team is an absolute must to assist you in completing the necessary checks and verification. Once these checks and verification have been carried out, you will know precisely what you are buying and from whom you are buying.

 

5.  Negotiate & Bargain

When buying a business, one must be aware of the dangers involved. The critical consideration is to figure out what the business is worth. It is essential to get a reasonable business valuation when considering buying it. Still, you should also be aware of the potential dangers involved in doing so. Always figure out what the business is worth, and do not rely solely on the books of account to give you an accurate picture.

FINAL TIP: Always remember, if something doesn’t smell right, no matter how many months you’ve put into the process or how much you want the business, you should not go through with the deal. If everything goes well, your lawyer can help you finalize and sign the sale agreement; the company is legally yours at that point.

Are you looking to buy a business? We offer video consultation via Lawyer Anywhere so that you can get the help you need.  We will walk you through the process and answer any questions you may have. Contact us today to get started.

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Stamp Duty for Property Transactions Explained

STAMP DUTY FOR PROPERTY TRANSACTIONS EXPLAINED

Whenever there is a change of ownership of residential property in Singapore, the transaction must be taxed. The taxes that must be paid are as follows: (1) a Buyer’s Stamp Duty (BSD); and (2) Additional Buyer’s Stamp Duty, if applicable (ABSD).

What is BSD & How Much Is It?

BSD must be paid when transferring or buying Singapore real estate. BSD is based on the purchase price or market value (the higher amount).

BSD Rates (for transactions after 20 Feb 2018)

Purchase Price or Market Value of Property

BSD for Residential Property

First $180,000

1%

Next $180,000

2%

Next $640,000

3%

Remaining amount (above S$ 1 million)

4%

As you can see, the BSD is taxed at a different rate depending on how much the home cost to buy or how much it is worth on the market. So, people who can afford more expensive homes will pay a higher BSD, while people who buy cheaper houses will pay less.

Illustration

  • If we purchase a home worth $500,000, the BSD payable is $9,600. 
  • If we purchase a home worth $2 million, the BSD payable is $64,600.

What Is ABSD & How Much Is It?

ABSD was part of a series of cooling measures implemented by the Monetary Authority of Singapore to limit speculative demand for residential properties in Singapore.

Since its introduction, the ABSD has undergone multiple revisions, and the Monetary Authority of Singapore has maintained that there are no intentions to relax property cooling measures.  The latest revisions were announced on 8 May 2022.

The buyer’s profile at the time of the purchase of the residential property will determine whether ABSD is payable, and if so, the amount of ABSD that must be paid.

ABSD must be paid in addition to the existing BSD by applicable buyers.

ABSD Rates (for transactions after 9 May 2022)

Buyer ProfileABSD Rate 
SC–1st residential propertyN.A.
SC–2nd residential property17%
SC–3rd & subsequent residential property25%
SPRs–1st residential property5%
SPRs–2nd residential property25%
SPRs–3rd & subsequent residential property30%
Foreigners–any residential property30%
Entities buying any residential property35%

While the BSD is based on a percentage of the property’s selling price, the ABSD is fixed. The amount we must pay varies according to our nationality (whether we are Singaporeans, PRs, or foreigners) and the number of properties we own, as shown in the table.

Singaporeans must pay an ABSD of 17% when buying a second residential property.

Illustration

If we want to buy a second home that costs $2 million, we must pay:

BSD + ABSD = $64,600 + $340,000 = $404,600

Count of Residential Properties Owned

 

(A) Count from the Date of the Sale and Purchase Agreement

If the Option to Purchase has been exercised, it should be counted as one of the buyer’s properties as of the day he exercised the Option, even if the property has not yet been legally transferred to him.

This includes purchasing a unit from the developer before its completion if the Sale and Purchase Agreement has been executed.

Similarly, the property should not be regarded as one of the buyer’s properties if the new buyer has exercised his Option to Purchase.

 

(B) Partial / Joint Ownership

Ownership of any interest in a property is counted as part of a buyer’s total property holdings.

Illustration

John jointly owns a property with his wife – Count 1
John owns a property with his brother, percentage ownership 30% – 70% – Count 2
The number of properties owned by John is 2.

 

(C) Multiple Properties in a Single Transaction

Many residential properties can be purchased under one contract. However, each residential property will be counted as its own.

 

(D) HDB Shop with Living Quarters

HDB shops with living quarters or shophouses with residential use will be included as a residential property count.

 

(E) Residential Properties Not in Singapore

All residential properties not located in Singapore will not be included in the count of residential properties owned.

When Must BSD & ABSD Be Paid?

If the BSD applies to you, the ABSD must be paid within 14 days from the exercise of the Option to Purchase or the date the Sale & Purchase Agreement is signed.

What About Inherited Properties?

IRAS has clarified that BSD and ABSD are not payable on properties acquired by inheritance. However, such properties are included in the property count if further residential property purchases are made.

We offer video consultation via Lawyer Anywhere so that you can get the help you need. We can walk you through the process and answer any questions you may have. Contact us today to get started!

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MOU & What They Achieve

MOU & WHAT THEY ACHIEVE

Hey, What Happened? Didn’t We Sign the Memorandum of Understanding (MOU)?

You eventually “ink” a contract with your business partner after many months of doing your due diligence and having engaged in rigorous negotiation. You are sitting in your favourite coffee shop enjoying a cup of latte while daydreaming about the brand-new Ferrari that you are going to be able to buy now that your company is thriving. Suddenly, you get an email that says the deal is off, and so, your fantasy of a lovely Ferrari dissipates as quickly as the coffee in your cup.

Your first thought is, “How can they do that? We have signed the MOU!” You have obeyed the cardinal “Getting It In Writing” rule and assumed that the deal is sealed. Can you still be left high and dry by the dishonourable reneging party with no legal recourse?

Very often in the business world, legalistic sounding papers like “MOU” and “letter of intent” (LOI) are bandied about. But are these documents worth the paper they are printed on? What are the consequences if one party breaches the MOU or LOI?  In many cases, the answer is not much. While a breach of a contract typically results in a lawsuit and the awarding of damages to the innocent party, a breach of a MOU or LOI usually does not. This is because the documents are not legally binding. They are more like letters of intent, non-binding agreements to negotiate in good faith.

What Exactly Is A “MOU”?

An MOU is typically used at the early stage of negotiations for an intended business transaction between parties. At this point, parties usually have yet to agree on all the essential terms of their transaction but still wish to set out its broad framework. An MOU is a document that outlines the understanding between two or more parties.

MOUs are often non-binding because they are preliminary agreements subject to a written contract. This incompleteness usually indicates the parties’ intention not to create legally binding relations until the enforcement of a formal contract or agreement.

The common uses of MOUs are:

  • to set out the general intent of the parties to prevent any misunderstandings;
  • to set out the critical points of a complex transaction to help to ensure that all parties are on the same page with regards to what is expected of them;
  • to provide safeguards in case the business deal collapses during negotiations;
  • to provide tangible proof of the business deal to potential investors.

What Must A “MOU” contain?

There is no hard and fast rule regarding what should be addressed in an MOU. 

As a general rule of thumb, an MOU should include the following information:

  • the general intention of the parties;
  • an overview of the business transaction;
  • the critical points of a complex transaction (e.g. price, quality and deadlines);
  • safeguards in case negotiations fail (e.g. confidentiality, non-disclosure and good faith).

Even though a MOU is not legally binding, it is still an essential document since the MOU records the understanding between the parties of the transaction and their intention. The purpose of a MOU is to foster collaboration, respect, and understanding among all parties involved in a transaction so that all parties can derive mutual benefit from the transaction.

If you’re need help drafting an MOU,  contact us via Lawyer Anywhere. We can help ensure that your MOU is as legally binding as possible.

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Asset Management Not Wealth Management

ASSET MANAGEMENT ≠ WEALTH MANAGEMENT

Asset Management and Wealth Management are often used interchangeably but what is essential to understand is the difference between them. While both services target to impact your financial services positively, the scope of their services varies greatly.

As its name suggests, asset management is the management of your assets. Asset management aims to grow your current pool of assets while mitigating the risks taken.

Wealth management encompasses asset management. The goal of wealth management is to protect you and your family’s wealth, which involves legacy and tax planning.

Key Differences Between Financial Planning, Asset Management & Wealth Management

 Asset ManagementWealth Management
MeaningManagement of assets of clientsManagement of all financial aspects of the client
Focus

Narrow Approach

Focused on building your investment portfolio

Wide approach

Focused on protecting your family’s wealth involves tax planning. 

FunctionManagement of investments/assets, risk-return legacy analysis, strategy formulation for asset management, identification of “suitable” assetsManagement of investments/assets & portfolios, tax planning, estate planning, insurance, education planning, retirement planning, charitable contribution
Approach

Offer products “suitable” for the client

Creative approach to offer in-house products through their financial expertise and direct involvement in the market

Required (“fiduciary duty”) to put client’s interest before self

Process-driven approach involving coordination of inputs from financial experts, lawyers, accountants, insurance agents and other specialists required for financial management

Compensation

Usually, a commission is based on product sales. 

May give rise to a conflict of interest

Retainer fee-based along a fee for the asset under management 

Favours impartiality in recommendations

Typical service providersBankers (Privilege & Private); External Asset ManagersExternal Asset Managers; Investment Advisers
Typical AUM From S$1million upwardsFrom S$10million upwards
Which approach is most suited for you?

There isn’t a one-size-fits-all solution.

At different milestones in your life, you will have set out different goals that you set out for yourself. While both approaches are targeted at positively impacting your financial situation, their suitability depends on your personal needs.

A wealth manager will be able to help you boost the efficiency of your monies, gain insights into estate planning and reduce tax on family assets.

On the other hand, if the only thing you require at the moment is expert investment advice, then asset management might be the better solution.

Working with asset/wealth managers can be a great way to improve your financial situation. They can help you grow your investments. Not all asset/wealth managers are the same. Who can you trust?

First, you should check to see if they are regulated, as all individuals providing financial services in Singapore are required to be regulated. Examine their credentials, including their experience and track record. While past performance does not guarantee future results, it is a good indicator of whether they will work for you. Other considerations would be the availability of portfolio valuation reports, transparency, and competitive fees.

The most crucial step is meeting with a few different managers to determine which one is the best fit for you. You should feel comfortable with your manager and confident they have your best interests at heart.

When managing your finances, it’s essential to get the right advice. If you’re unsure whether you need to hire an asset manager or a wealth manager, speak to us via video consultation via Lawyer Anywhere. We can discuss your needs and recommend the best solution for you.
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Top 10 Legal Tips For Small Businesses

TOP 10 LEGAL TIPS FOR SMALL BUSINESSES

Running a business is often exciting.  But without the right advice, it can also be a minefield, especially concerning legal matters.  Prevention is always better than cure. 

The following top 10 tips aim to guide you through the minefield:

 1.  Don’t Put Your Assets At Risk

 Are you running your business with your partners?  If so, are you aware that under Singapore law, all partners are jointly liable for the debts and obligations of the business?  So if your business encounters any problem, not only will your investment in the company be at risk, but all but your assets will also be at risk.  Depending on your business structure, it can help avoid liability – private limited company, limited partnerships, etc.

 

2.  Put It In Writing

All your business agreements must be in writing.  It is often difficult, if not impossible, to enforce an oral agreement.  You may have no recourse for compensation or legal action if problems arise.  So make sure all your contracts are written to give you flexibility and protection.

 

3.  Get Proper Legal Advice Early

 Different lawyers specialise in different areas of the law.  You must find the correct lawyer to help you. Every growing business needs a business lawyer since they are experienced in representing start-ups and emerging companies. The amount you pay for an early advice is usually substantially lower in the long run since it saves you time, aggravation and money.

 

4.  Spell Out Your Terms and Conditions

 Cash flow is the lifeblood of any business.  Make sure to spell out your terms and conditions (e.g. terms of trading) to all your customers. This way, you will not be at risk of being paid as and when the customers feel like it.

 

5.  Keep Up to Date With The Law

The scope of business law is extensive; as such, no business owner can be expected to be well versed in every aspect of business law.  However, it would be best if you had an essential awareness to help keep yourself out of trouble.  A basic understanding of the following topics is vital:

  • basic contract rules
  • major employer-employee laws (e.g. CPF contributions)
  • regulations of your industry

6.  Keep Employment Contracts Clear And Simple

It is essential to set out your expectations and rules for your employees.  No employer/employee is expected to be an expert in employment law.  Ensuring your employment contract is easy to understand would be helpful.

 

7.  Protect Your Intellectual Property

Do you have a secret formula for your product?  Do you think your competitors would love to get their hands on your secret formulae?  If so, you must take steps to ensure that your “secrets” are protected.  Such protection includes trademark registration, confidentiality agreement and non-competition agreements.

 

8. Keeping Proper Corporate Records

Small businesses are notorious for failing to keep records.  Failing to maintain proper or improper records can create ACRA and IRAS problems.  This may also result in personal liability or even hinder your ability to raise funds.

 

9.  List Down Your Rights & Responsibilities

If you run your business with your partners, have you consider what would happen if any partners left the company by choice or otherwise?  Partners or shareholders often fail to sit down and list their rights and responsibilities. 

When a problem arises, this often results in costly litigation fees, which drain parties financially and mentally. 

Such problems can be avoided by having an agreement which deals with the following issues:

  • how much capital must each person contribute?
  • what happens if the business needs more money?
  • what happens if one person leaves the business?
  • what happens if one person dies?

10.  Getting Involved In Litigation

Litigation fees can be astronomical.  You should always seek your lawyer’s advice for options such as mediation or arbitration to resolve the matter.  If, on the other hand, a suit is brought against you, call your lawyer immediately.  Do not attempt to respond without your lawyer’s advice, especially since the first response usually sets the tone of the proceedings.

Having difficulties putting these tips into action? Skip the hassle of waiting to make an appointment with a lawyer.  We offer video consultations via Lawyer Anywhere so that you can get the help you need. Contact us today to get started.

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Wills v Trusts

WILLS V TRUSTS

People use two primary estate planning documents to plan for the distribution of their assets after death: Wills and Trusts. Both have advantages and disadvantages, so it is important to understand the difference between them before making a decision.

Most people are familiar with the concept of a Will – it’s a legal document that outlines how you want your assets to be distributed after you die. If you don’t have a Will, your assets will be distributed according to prevailing law. 

A trust, on the other hand, is a bit more complex. A trust is a legal arrangement in which you (the trustor) transfer ownership of your assets to a trustee, who then manages and distributes those assets according to the terms of the trust. Different types of trust can be used for a variety of purposes. A revocable trust is a type of trust that can be amended during the grantor’s lifetime, while an irrevocable trust cannot be amended. Trusts can be used for estate planning, asset protection, and charitable giving.

Key Differences Between Wills And Trusts

When it comes to estate planning, many people are unsure of whether a Will or a Trust is the best option for their situation. While both options can effectively handle your affairs, there are some key differences to understand before making a decision.

1.  Effective Date

A Will does not go into effect until after you die, whereas a Trust is active once it is created and funded. This means that a Trust can be used to manage assets during your lifetime, which can be helpful if you become incapacitated or otherwise unable to manage your affairs, something a Will cannot do.

2.  Probate And Privacy

When a person dies, their estate must go through probate to confirm the Will and allow distribution of assets. Probate is a process that a probate court oversees, and it can be lengthy and expensive. If a person dies without a Will, the process is often even more complicated and can take longer and cost more.

The key feature of a Trust is that it is not subject to probate because they are not considered part of a person’s estate. This means that Trusts avoid the time-consuming court proceedings and costs associated with probate.

While a Will is typically considered a private document, the reality is that anything that happens in court is available to the public through public records. As Trusts are not subject to probate, matters can be kept private. This can benefit individuals who want to keep their affairs confidential and out of the public eye.

3.  Complexity And Cost

The cost of preparing a Will is relatively cheap and straightforward. However, Trusts can be complex and require more paperwork to establish, so they are generally more costly to organise upfront than Wills. However, avoiding probate down the road can offset the cost of setting up a Trust.

4.  Protection From Creditors

A Will is a legal document that dictates how a person’s assets will be distributed after death. However, if that person has creditors, those creditors may be able to claim against the Will.

Trusts offer asset protection from creditors, and the trust creator can condition asset allocation to family members during certain events or place restrictions on beneficiaries’ receipt of assets. This means that you can control how your assets are used even after you’re gone.

Will or Trust or Both?

When it comes to estate planning, a Will may be all you need – but if you have more complex financial affairs or want to take extra measures to protect your assets, a Trust could be the best solution.

Be sure to consult an experienced lawyer to discuss your best options and devise a plan that will work best for you and your family.

Speak to us over video consultation via Lawyer Anywhere for advice on your Estate Planning Matters today!
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Capital Markets Licence Overview

CAPITAL MARKETS LICENCE OVERVIEW

Singapore is the only Asian country with a “AAA” rating from all 3 major credit rating agencies – Standard & Poor’s, Moody’s and Fitch. This strong credit rating has enabled Singapore to become an international financial centre and one of the leading global financial hubs, with a whole range of international banks setting up head offices and regional headquarters in Singapore.

The key to Singapore’s success is the robust regulatory framework in place for the financial services industry. The industry’s primary regulator is the Monetary Authority Singapore (MAS). All financial institutions operating in Singapore, including banks, insurance companies, stockbrokers, and fund managers, must be licenced by the MAS.

Businesses wishing to conduct any regulated services under the Securities and Futures Act (SFA) must obtain a Capital Markets Services Licence (CMS licence).

The regulated activities are:

  • Dealing in Capital Markets Products
  • Advising on Corporate Finance
  • Fund Management
  • Real Estate Investment Trust Management
  • Product Financing
  • Providing Credit Rating Services
  • Providing Custodial Services for Securities

To obtain a CMS licence, you must fulfil the following requirements.

1.  Services Provided / Target Clientele 

When you are planning to start a business in the financial industry, there are 3 main issues you must consider. First, you need to determine which markets (regulated activity) your business falls under. Second, you must evaluate the expected assets under management (AUM). Thirdly, you will need to determine who are your target clientele.

 

2.  Company Structure and Office Space

Your business entity must be structured as a company incorporated under the laws of Singapore. In addition, you should ensure that the business entity must have a permanent physical office in Singapore that is dedicated, secure and accessible only to your directors and staff. 

 

3.  Company Personnel

To protect and safeguard the interest of investors, the MAS requires that key personnel in the company, such as the shareholders, CEO, directors, and employees are “fit and proper” and possess the experience and track record to carry out the regulated activity. It should be noted that the experience of investing one’s own money is not relevant.  

 

4.  Company Financial Standing

To ensure that the company is committed to the long-term sustainability of the business, the MAS requires the company to meet specific financial requirements, namely base capital and risk-based capital requirements. Any CMS licence holder company should have a reasonable amount of additional capital buffer it needs, bearing in mind the scale and scope of its operations.

 

5.  Company Compliance Arrangements

The key objective of the MAS regulatory framework is to ensure that financial institutions conduct their business with integrity and prudence and are appropriately supervised to minimise the risk of harm they may pose to the financial system and the economy. It also ensures that financial institutions offer a high level of consumer protection and service.

To ensure that the CMS licence holder companies conform with regulatory requirements, the MAS requires such licence holders to implement a compliance structure appropriate for its operations’ size, complexity, and nature and a practical framework for managing risks. The company also needs a robust internal audit and an anti-money laundering framework to discover, assess, comprehend, and manage its money laundering and terrorism funding threats.

 

6.  Internal Audits

The MAS expects all CMS licence holders to be subjected to adequate internal audits. “Adequate internal audits” are those that take into account the scale, nature, and complexity of the licence holder’s operations.

 

7.  Independent Annual Audits

Where applicable, CMS licence holders are subjected to annual audit requirements. Such audit arrangements should commensurate with its operations’ scale, nature and complexity. 

There are stringent requirements that must be met before any company can be granted a CMS license in Singapore. 

The MAS’s timeline for reviewing, processing, and approving any CMS licence application is determined by the business model. It would take no more than 4 months for straightforward cases where the applicant meets all of the required criteria and the documents submitted are in order.

The CMS licence has an indefinite validity period as long as the holders comply with ongoing obligations such as payment of annual licence fees and continued compliance with conditions, rules, and directions as set out by the MAS. Any non-compliance can result in the CMS licence being suspended or revoked.

The list of all CMS licence holders in Singapore can be found in the Financial Institution Directory on the MAS website.

If you want to obtain your CMS Licence, you may be wondering where to start. Speak to us over video consultation via Lawyer Anywhere, and we can help you with your CMS Licence application.

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Family Office in a Nutshell

FAMILY OFFICE IN A NUTSHELL

The family office market is one of the fastest-growing segments in the wealth management services industry. However, despite the growth, the industry is often misunderstood, with many people believing it to be either a small niche business or a differentiating factor for the ultra-high-net-worth.

The idea of a family office is nothing new. Royal families have been establishing them for decades to manage the financial affairs of the royal household and their real estate holdings. Meanwhile, billionaires have also been setting up family offices to handle the operation and management of their financial assets. But more recently, affluent individuals, far from being billionaires, are also establishing them.

1.  What Is A Family Office?

The definition of a family office varies, but Forbes says it’s “a private office that handles the financial and personal affairs of high-net-worth families.” Additionally, the family office tends to be private and insulated from public relations. It’s typically mission-based, highly confidential, and takes on personal tasks that ensure the wealthy family would not be exposed to public scrutiny.

 

2.  What Are The Purposes Of A Family Office?

As the responsibilities of a family office vary from one to another, it’s safe to state that there is no standard set of duties. A family office typically takes care of:

  • Consolidates and integrates financial activities of the family members – Rather than letting each family member manage their wealth, a family office can consolidate all the related activities and businesses. This includes investment management, accounting, tax planning, insurance, and philanthropy. Of course, the family office might still work with external advisers for some related activities, but the family office coordinates all the activities.
  • Ensures tax efficiency of the estate by planning distributions from inherited investment
  • Helps to insulate the family from inappropriate business and personal entanglements – The family office can be involved in all the financial and business transactions of the family. As a result, it can prevent unwanted deals by screening them beforehand.
  • Provides professional management of family commercial and real estate holdings – A family office can oversee the management of dairy farms or vineyards. It can also be involved in the day-to-day operations of a luxury hotel. A family office can also manage non-family-owned companies (e.g. corporate startups) or even charities.
  • Provides a central location for coordinating family information – Family members who delegate their business and personal affairs to a full-time family office will enjoy having a one-stop shop for their many requirements. This can include managing emails and maintaining confidentiality regarding their matters.
  • Provides security and safety for the family – This includes providing safekeeping for valuables and precious documents, as well as monitoring the health of family members.
  • Offers complete infrastructure and basic human needs for family members – This includes providing health insurance, managing travel, arranging educational opportunities for children, and so forth.

 

3.  Why Create a Family Office?

Family offices are excellent for managing wealth and holding it within a family circle. They are not meant to serve the entire spectrum of personal, discretionary, and non-discretionary affairs. Those who need comprehensive estate-planning services should look for a full-fledged office suite consisting of an attorney, accountant, and broker-dealer.

 

4.  Key Roles of a Family Office

  • Trustee  :  Discretionary trusts are those wherein beneficiaries can petition the trust maker for funds—for any purpose. However, non-discretionary trusts are set up so that the beneficiaries are only entitled to receive funds upon the trust maker’s death. This is where a family office comes in handy. Since families tend to be protective of their wealth, they can ensure that subjects don’t have access to the trust funds until they are proven worthy. Family offices act as trustees of discretionary trusts for external stakeholders.
  • Investment Agent  :  Certain families feel brokers and financial advisers are not catering to their needs.  Some want to invest in obscure funds or markets that are off-limits to the general public. Others want to hold onto certain assets. Family offices act as investment agents for the assets in question in these cases.
  • Directional Guidance  :  Even though heirs are legally entitled to receive the trust funds at the time of the trust maker’s death, discretion can be used in guiding them. For example, the contingent-inheritance scheme may dismiss children from previous marriages. Similarly, the family office may approve or reject future spouses (by will). This allows them to approve or reject future beneficiaries quasi-judicially.
  • Business Owner Shielding  :  Some high-net-worth families use family offices to shield their business assets from future entrepreneurs looking to claim them. Children are not savvy enough to run a profitable business, so the family office assists in vetting. This allows families to choose the entrepreneurs who will run the companies in question in the event of the trustee’s death.

Families come in all shapes and sizes, just like family offices.  As such, there can be no template for family office structures since they are tailored to the priorities and facts of each family.

The creation of a family office usually takes place when a considerable amount of wealth has been created.  The nature and function of the family office are generally set out by its founder with a specific purpose in mind.  The services of the family office can change over time, as the family grows in size or as the family’s needs change over generations. 

The key function of the family office never changes – it is there to preserve the family’s wealth. 

The best family office is the one that achieves the family’s objectives and visions. 

When protecting your family, it’s vital to get the right advice. If you’re not sure whether you need to appoint a fund management company or MFO or even to set up your own SFO, speak to us over video consultation via Lawyer Anywhere. We can discuss your needs and recommend the best solution for you.

Susan Tan

Senior Legal Executive

Qualifications:

With more than 10 years of experience in the financial industry, Susan Tan, who joined us from one of the leading corporate and investment banks in Singapore, provides invaluable expertise and knowledge in corporate secretarial.

She is conversant and familiar with the local regulations and requirements for business entities in Singapore.

As a member of our team, Susan is responsible for maintaining and updating the Company’s statutory registers and records, filing all necessary documents and forms with the Accounting & Corporate Regulatory Authority (ACRA), Ad-hoc assignments such as allotment and transfer of shares, amendment of Company’s Constitution and submission of Annual Return to ACRA.

Apart from corporate secretarial work, Susan has considerable experience and expertise in compliance advisory matters, making her a valuable member of our firm.