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擁有財富及繼承人,卻解決不了跨世代的財富傳承紛爭
亞洲移民現今已經遍佈全球,移民國家莫屬美國移民人數最眾。在這些亞裔家族在美落地生根,家族規模開枝散葉越來越茁壯之際,家族所創造之財富型態也越形複雜,傳承給後代也絕非僅循以往之模式就能解決。過去三十年間,本人實際參與過許多亞洲高財富個人傳承案件,觀察到他們的財富傳承的方式非常一致――第一代努力工作並獲得豐富的經驗,期望後代能夠過著富裕的日子;然而,財富的經驗法則往往是,它很難從第一代順利地轉移到第一代。對第二代來說,財富雖然形成了助力,但是在接棒過程中可能處處充滿危機,而危機常源自於上下代對於財富抱持的看法並非一致。
上下代對於財富的看法源自不同的思維模式,如此便造成不同世代之間的衝突――來自亞洲的第一代,通常保有根深蒂固的傳統價值觀;第二代若非土生土長在美國,則是為了求學或開拓視野而赴歐美求學,受到崇尚個人的自由風氣的薰陶。如此的差異當然造成了價值觀和想法之間的極大落差。此外,第一代創富者的行事風格和個性理念通常主導了企業經營和家族傳承的方向,他們這代多是白手起家,經過重重的嚴苛考驗、付出許多心力再加上些許的運氣,才創造出今日的財富。也因為如此,他們挾著個人叱?事業場的豐富經驗和主觀意識及價值判斷,經常是以權威之姿來主導整個傳承大局。多年內化的主觀意識使得他們難以向第二代解釋其思維脈絡,而第二代更難以揣測上一代的心意。
長此以往,兩代之間對於經營企業、財富管理及家族傳承的溝通無法完善,許多有利於創造家族財富的機會就此喪失,更多無形的家族價值也會在無效的溝通中逐漸消失。許多案例是一直等到家族裡有重大變故,例如第一代的健康亮起紅燈,或是企業經營發生危機,兩代至此才談及交接議題,否則第二代常是無法理解和掌握上一代的想法及其對企業經營的規劃,如此情況無益於上下代之間的經營傳承。
除了思維模式導致溝通不良之外,另一個不利於財富傳承的導因是上下代對於家族企業的經營產生的歧見。第一代苦心栽培第二代,期望他們能夠繼承自己辛苦積纂下來的企業江山,但第二代往往不積極甚或無意涉入家族企業,想當然耳,最終必定導致家族激烈的衝突。本人在執業過程中也常充當和事佬,觀察並體悟到如果第二代在享受優渥生活的同時能共同分擔經營責任,去了解家族企業的運作並投身管理行列,必定能夠避免和上一代的紛爭。
再者是「富不過三代」的案例屢見不鮮。就亞洲傳統文化來說,大部分高財富個人一輩子的努力就是為了下一代,但現實往往是第一代創造累積、第二代守成維持、第三代則是敗光一切。第一代辛苦累積創造財富,但不肯也無意願過著豪奢生活,粗茶淡飯的日子甘之如飴;但是第二代或第三代因從未參與過第一代辛苦的累積財富過程,自己過著錦衣玉食的日子,只想著將家族財產變現好繼續過著安逸生活,如此的揮霍度日恐怕是第一代預料不到的。
本人在過去三十年間處理了許多面臨類似難題的家庭紛爭,除了上下代產生對立的狀況之外,也發現有為數不少的第一代抗拒交接給下一代,當中的一個原因竟源於跨國稅務的申報。許多有著雙重國籍或是美國稅務身份的第一代,抱持著美國國稅局不可能找上的固執想法,因而不申報美國稅、不披露海外金融帳戶,任憑第二代如何勸說都始終冥頑不靈。本人對於這些不願多繳稅的高資產人士來說,常常花上許多心力來導正他們的觀念,最終合法申報美國稅並確實收到降低稅負的效果。反觀居住在美國的第二代,他們雖然繼承了上一代的財富,卻面臨申報美國稅和揭露海外資產的情況。他們的稅務難題有二:一是他們應繳美國稅卻未盡繳稅之義務;二是上一代未妥善作規劃財富傳承所引發的種種問題讓第二代無可奈何。
究竟這些高資產人士為何不及早規劃財富傳承的各個階段?深究其原因,還是創富者的「不作為」所致。當中許多第一代開始得太晚或是根本沒時間去策劃,甚或有些人認為自己的大限之日還太遙遠,現階段根本不需要考慮傳承之事。因此這些「不作為」就在十年、二十年過後,這些富人的上市股權、家族控股、骨董字畫、翡翠鑽石等的財富,還是在原地打轉、未見有積極的傳承規劃。
財富傳承是個大學問,如何將成功傳給下一代,在今日已成為亞洲創富家不得不面對的問題。尤其當主要財產在亞洲,但繼承人長年居住在海外時,挑戰更是艱鉅,常常容易導致資產管理不善。很多情況是,第二代繼承人因為不懂亞洲文化和法令限制,因而造成他們在繼承財產時許多負擔和資源上的浪費。
最後,財富傳承者也應了解美國和亞洲對於財富傳承抱持的觀念差異,才更能理解下一代對於接管財富的想法。在美國來說,富人傾向建立大型的慈善機構來進行財富捐贈以幫助弱勢族群;反觀在亞洲,富人多是儲蓄財富傳承給下一代,不似美國富人會挹注許多資金給非營利組織。
此種差異來自於西方富人對社會抱持著關懷的心,他們期望能夠對人類社會貢獻一己之力。也因此,從小就生長在美國的富二代或富三代承接的是西方對於財富的價值觀,他們傾向追求自我的人生目標,抱著未來將家族財富捐贈給非營利組織的心態,而非自己投入家族企業的經營。但這樣的想法常常引發了與上一代和其他家族成員之間的衝突。長久下來,家族成員對於財富處理的態度不一,最終引發嚴重的家庭衝突。
就本人從處理的案件中歸納出,財富傳承莫過於圍繞在傳承成本、傳承糾紛、傳承債務與傳承管理等四大問題;首先,傳承成本指的是財富轉移程序中的難度與稅費;傳承糾紛則是財富轉移過程中可能引發的種種問題;債務糾紛亦是財富傳承的致命傷,往往事業和投資越大、未來糾紛就越多;最後是傳承管理,意即上下代之間對於經營企業的共識不一,因此更需要有效的管理工具(例如信託等)加上專業經理人來解決此一問題。這些財富傳承的四大問題不論是財富第一代、第二代,甚或是第三代都需要共同面對。本書於第三、四、五章中將提及家族財產傳承與信託,包括離岸信託與美國信託,家族可撤銷與不可撤銷信託架構、信託合約架構、如何將跨境資產國際化並移入家族信託等,均有詳盡的分析及介紹。期望以本書搭建起財富家族上下代之間的橋樑,將財富進行妥善的規劃,長長久久的傳承下去。
本書的出版從案例蒐集、各國繼承法令、信託法規的彙整到美國信託實際操作的說明,歷經多年的時間,期間拜訪過美國、瑞士、列支敦斯登、新加坡、香港、中國多達上百位信託律師、稅務律師、信託受託公司主管,他們熱誠且完整的提供各國信託實際操作資料,並就現行各國信託成立所遇到的問題提出探討,為本書的編著提供了最基本的材料;大中華地區KEDP Group專案經理團隊就日常工作遇到的案例編撰成七種不同關係類型的案例,引導讀者深入了解亞洲華人就跨境傳承所遭遇的問題;KEDP 同仁累積數年信託成立與維持的實操經驗,以流程圖、比較表,與執行步驟來詳細說明整個信託實際操作流程。此外本書最大特色是以中英文並列方式編寫,方便中美兩地不同世代的讀者閱讀以拉近世代間的距離,英文陳述由本人內人Gina Chang與兒子Max Lu及媳婦Loren Park統籌主導,沒有這些人的努力,此書難以付梓,在此一併感謝他們。
Preface
Over the course of history, wealth has been passed from one generation to the other. The trend is quite clear. With the first generation, they tend to work very hard and garner much experience. They want the best for their posterity. The issue with wealth is that it has a hard time transferring from one generation to the other. This can be seen through many empirical examples.
Money is helpful but dangerous for the second generation. If the first generation wealth creator does a thorough job of planning his legacy, the second generation benefits from his hard work. Estate Planning by U.S. Trusts will outline the manner by which this goal may be achieved. If the first generation is unable to properly plan his legacy, the second generation and other family members may suffer as a result. This could include employee fights, family feuds and resources waste.
Estate Planning by U.S. Trusts, through case studies, will show instances of successful and not so successful familial wealth transfers. These case studies will also show readers what the founders could have done, if they had taken the time and effort. The second generation can use these examples to create a better framework. By looking at the first generation, subsequent generations are able to put themselves in the mindset of wealth and power.
Often, there is a conflict with successive generations due to differing mindsets. An explanation for this is that most first-generation readers are from Asia; hence, they have Asian values. The second generation have often immigrated to the U.S. or is in the process of immigrating to the U.S. This creates a rift between different cultures and values. This also means that a lack of communication could easily cause thoughts, ideas and values to get lost in translation.
From the author’s perspective, the second generation tends to ignore the family business, often considering burdensome to take over. This leads unavoidably to familial conflict; however, it doesn’t mean these conflicts cannot be resolved. The second generation may be very well off financially, but despite this, they must still discover their purpose in life, in their families and in their families’ businesses.
The first generation is often going to have an odd dynamic because of the disparity between their thoughts and their children’s thoughts. The first generation experience firsthand the hardships of their careers and the pursuit of excellence. They often have strokes of luck that benefit them along the way. Compared to the second generation, the first generation may be more liable to subjective opinions from experience. This mindset is often quite difficult to explain to the second generation. Unless there is a major accident, be it a blight to health or something detrimental to a business, the matter of wealth transition is not a topic that frequents any family. As a result, the second generation may not fully understand the plans set forth by the first generation until it is too late.
Over three decades, the author has helped and guided families who deal with these conundrums. The author finds that his clients, often first generation wealth creators, tend to have resistance to beginning the transition process. A common issue is that as many wealth families spread out, they might not know how to properly calculate taxes and file disclosures for each jurisdiction.
The second generation understandably worries because they live in the U.S. and must eventually confront their worldwide tax liabilities if the first generation leaves assets overseas. There are two issues that arise from this situation―the first issue is that CPAs warn this population to pay their taxes, but they do not. The second issue is that the first generation wants to earn more money or spend money they made but do not leave adequate details regarding their wealth to the second generation. The second generation often ends up splurging without regard to familial values. Sometimes, even if the first generation wants to plan a transition, they often start too late, have inadequate time or think that they will not die anytime soon and thus delays the process.
In traditional households, it is the first generation that generates a large proportion of the familial wealth. The second generation usually keeps and reinvests the family fortune. Unfortunately, the third generation has a tendency to lose much if not all of the wealth previously earned. Looking at the overall trend of the different generations, the first generation makes money and is adept at retaining it because they are saving, frugal people. The first generation spends very little, whereas the third generation typically just wants to cash out. These people tend to splurge on sports cars, jets, yachts, and items that are overly opulent and excessive.
The key question that the author would like to pose to the first generation is if they really want to see this happen to their third generation. The process of wealth transition is not an easy one. This extremely difficult art is important for families to undertake and know that this is a difficult and critical challenge. This problem is further intensified by the fact that second and third generations generally not to live in Asia, assets left to them may still be in Asia. This leads to mismanagement of their assets. Furthermore, the second and third generation may not understand the culture, laws and regulations of Asia.
The definition of “wealthy” is also different in Asia and America. If one is wealthy in America, the western ideal is that these people donate and build large organizations to help those who are in need. On the other hand, in Asia, the family structure tends to save and give to the next generation. They may not invest much if any of their assets in nonprofit organizations. A reason for this disparity may be because, in the West, the wealthiest care about society, the furthering of society, and what they can do to help that agenda. The second and third generation typically have more western values, so they may want to donate to nonprofits. This can lead to confrontation and conflict with other family members who do not share the same mindset. Over one or two decades, conflict in the family will brew and this leads to generations not being able to effectively communicate with each other. The first generation’s highest priority is to give to the second generation. They only want to give once they have a mass excess and the welfare of their posterity is secured. Once this is achieved, they want to then donate and leave a lasting impact, but they do not necessarily know how to do so.
There are four big questions to wealth transition. The first question is: What is the cost of transition from generation to generation? The second question is: What are the possible conflicts that can arise from transition? The third question is: What to do about debt? Companies may rely on credit to function, so what to do about the debt that they have incurred? The fourth and final question is: What to do if the second generation is unable to transition? Estate Planning by U.S. Trusts aims at building an effective communication channel between generations of wealthy families to solve issues arising from the inheritance process.
This book is based on a collection of actual cases, the study of succession and trust laws of various countries, and the actual operation of U.S. trusts. Moreover, during the past few years, the author has visited almost one hundred trust lawyers, tax lawyers, and trustee companies in the USA, Switzerland, Liechtenstein, Singapore, Hong Kong, and China. All of the above experiences and people have contributed to the basic materials for this book. KEDP Group in Greater China have compiled seven types of relationship disputes based on their practice. This may help readers realize the dilemmas for Chinese when dealing with the cross-border inheritance. In addition, the biggest feature of this book is that it is written in Chinese and English. This allows the book to be convenient for readers of different generations in China and the United States. The author’s wife, Gina Chang, son, Max Lu, and daughter-in-law, Loren Park, have collaborated the English part. Without their efforts, this book would have been impossible to publish, and, here, the author gives thanks to all of them. This book covers a wide range of topics involving a number of countries and regions related to wealth transfer related laws and practices. As a result, the author refers to many professional’s advanced works and research during the writing. To sum up, hopefully readers will enjoy the book and experts from all walks of life will think the book useful.