Inheritance tax and law
December 02, 2013
The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Uganda: what restrictions there are and whether making a will is advisable.
No inheritance or gift tax is levied in Uganda.
Thanks to Shonubi, Musoke & Co.
What inheritance laws apply in Uganda?
Inheritance of property in Uganda is governed by the Succession Act.
Both Ugandan citizens and foreigners are allowed to bequeath and inherit both movable and immovable property located in Uganda.
Immovable property in Uganda, which is owned by a foreigner domiciled outside Uganda is regulated by the national law of the foreigner's home country so long as he/she makes a will to that effect; however, if the deceased foreigner was domiciled in Uganda, and/or he/she dies intestate, then the law of Uganda is applicable. For the purpose of the law, a person who resides for two or more consecutive years in Uganda is considered to be domiciled in Uganda.
If a foreigner who is domiciled outside Uganda makes a will according to the law of his/her domicile, then it is not possible to envisage a situation in which the laws of Uganda regulate the succession of his/her immovable property. If a foreign testator owns real property in Uganda, but is not domiciled in Uganda, and the law of the foreigner's domicile or nationality states that inheritance issues must be handled by the country where the property is located, then the inheritance law of the foreigner's domicile or nationality, and not Ugandan law, is applicable.
If a foreigner who owns immovable property in Uganda does not make a will, and consequently dies intestate, then his/her immovable property is devolved according to the laws of Uganda, irrespective of where he/she is domiciled.
If a Ugandan citizen at the time of death bequeaths movable property by will to a foreigner, then nothing prevents the foreigner from inheriting that property. If the inheritance involves immovable property then the 1995 Constitution of the Republic of Uganda regulates the conditions. If the property consists of land, and such land was held by a deceased Ugandan citizen in freehold or mailo forms of tenure, then a foreigner cannot freely inherit such land, since the Constitution states that Ugandan land belongs to the citizens of Uganda, and shall vest only in them; however, the Constitution provides for foreigners to acquire a leasehold interest in Ugandan land for either 49 or 99 years. To acquire the leasehold, an application for a certificate of no objection must be made to the Administrator General and a charge of 1% of the value of the property is made.
The Family and Children Court in Uganda handles issues of Family law including inheritance; however, the High Court of Uganda has overall jurisdiction. Therefore, if an inheritance is disputed, the issue may be referred to the Family Division of the High Court of Uganda for determination.
Intestate succession is determined by Ugandan law.
If a male Ugandan citizen or a foreigner with assets in Uganda neglects to make a will, or if he is not permitted to do so, then the Succession Act determines who are his successors, representatives and legal heirs. The law is silent as to whether a woman can leave her property in Uganda by intestate succession. Traditionally, before the era of gender equality, women in Uganda were not permitted to own property, so when the current Succession Laws were drafted, it was presumed that women owned no property. Therefore, no provision was made in law as to the devolution of the property of a woman upon her death. Due to pressure from Human Rights Organizations and Womens' Activist Bodies, a new Domestic Relations Bill has been presented. This Bill has not yet been assented to by the President of the Republic of Uganda; however, in practice, the Administrator General generally makes the same provisions for the distribution of the property of a male intestate as that of a female intestate.
100% of the property of an intestate Ugandan citizen or a foreigner domiciled in Uganda is distributed to the customary and legal heirs. A customary heir is a person recognized by the rites and customs of the tribe or community of a deceased person as a customary heir. He/she may or may not be a child of the deceased. In practice, after the burial of a person who dies in Uganda, there is a family meeting, in which the customary heir is chosen. The legal heirs include the spouse, the lineal descendants (children) and dependent relatives (who are wholly or substantially dependent on the deceased for the provision of the ordinary necessaries of life required by a person of his/her station.)
If the intestate is survived by a customary heir, a spouse, lineal descendants and dependent relatives:
- The customary heir receives 1%.
- The spouse receives 15%.
- The dependent relatives receive 9%.
- The lineal descendants receive 75%.
If the intestate is survived by a customary heir, a spouse, and dependant relatives but no lineal descendants:
- The customary heir receives 1%.
- The spouse receives 50%.
- The dependent relatives receives 49%.
If the intestate is survived by a customary heir, a spouse, or dependent relatives but no lineal descendants:
- The customary heir receives 1%.
- The spouse and the dependent relative receive 99%.
If the intestate leaves no surviving heirs, other than a customary heir, the estate is divided equally between relatives with the nearest degree of kinship to the intestate. If no relative takes any portion of the property of the intestate then the whole of the property goes to to the customary heir.
Additional rules of intestate succession include the following:
- In there is no customary heir, his/her share is distributed to the other legal heirs.
- Nothing above stated prevents the customary heir from taking a further share in the capacity of a lineal descendant if entitled to it in that capacity.
- Nothing above stated prevents the dependent relatives from making any other arrangement relating to the distribution or preservation of the property of the intestate provided that the arrangement is sanctioned by court.
- All lineal descendants, wives and dependent relatives are entitled to share their proportion of a deceased intestate's property in equal shares.
- Any child of a deceased lineal descendant, whose descent is not traced through any living lineal descendant and who survives the intestate, takes the share which the deceased lineal descendant would have taken had he or she survived the intestate.
- If a foreigner is a dependent relative (e.g. the spouse of a Ugandan citizen) then he/she can inherit property in Uganda via intestate succession.
A will is essential to avoid the rules of testate succession.
If the deceased foreigner has left a will then the administrator of the estate must adhere to the wishes of the deceased, whether the property has been left to a Ugandan citizen or to a foreigner. Any person who does not want his/her property in Uganda to be devolved by intestate succession must therefore make a will in which he/she directs how the property should be distributed.
A person can freely bequeath his/her property to anybody in a will, but if the testator is domiciled in Uganda, then the will must be made locally, follow Ugandan law, and provide reasonable provision for the maintenance of dependent relatives, who, on the date of the deceased's death, include:
- A spouse or child under 18 years of age, or a son or daughter above 18 years of age, who is wholly or substantially dependent on the deceased.
- A parent, a brother or a sister, a grandfather or grandchild who was wholly or substantially dependent on the deceased.
It is prudent for a foreigner who owns property in Uganda to make a will.
A foreigner domiciled in Uganda who wishes to bequeath assets in Uganda should make a local will. A will made outside Uganda by a person who is domiciled in Uganda is valid only to the extent of its validity with respect to Ugandan laws of inheritance. The conditions of a Ugandan will include the following:
- The testator must be of sound mind and above the age of minority (18 years).
- No person can make a will if in a state of mind arising from drunkenness or illness or from any other cause which prevents that person from not knowing what he/she is doing.
- A person who is deaf, dumb or blind is not incapacitated to make a will if that person knows what he/she is doing.
- A person who is ordinarily insane may make a will during an interval in which he/she is of sound mind.
- The name of the person making the will must be clearly stated.
- The executors of the will must also be named.
- A customary heir must be appointed.
- Provisions must be made for dependent relatives.
- The persons who receive specific gifts must be named.
- The person's who are given a share in the property must be named.
- The will must have a signature or a mark of the will maker.
- The will must also have the signatures or marks of two and their names, addresses and occupations must clearly be stated.
- The wording used in a will must clearly depict the intention of the testator.
If a testator domiciled in Uganda dies and leaves a dependent relative who is excluded from the will, then the court may order that reasonable provision should be made out of the deceased's estate for the maintenance of the dependent relative subject to such conditions and restrictions, if any, as the court may impose.
Gifts can be made during lifetime subject to restrictions.
A person may freely give his/her moveable property in Uganda to anybody before death; however, the donation of immovable property is restricted. The land on which a family ordinary resides cannot be transferred to another person without the consent of the spouse or children of the donor.
Guardians are appointed to manage the inheritance of children.
The Succession Act provides that a father can by will appoint a guardian or guardians for his child or children during the age of minority. If no guardian has been appointed by the will of the father, or if the appointed guardian is dead or refuses to act, then statutory guardians may be appointed, as follows:
- The father or mother of the deceased.
- If the father and mother of the deceased are dead - the brothers and sisters of the deceased.
- If the brothers and sisters of the deceased are dead - the brothers and sisters of the deceased's father.
- If the brothers and sisters of the deceased's father are dead - the mother's brothers or father.
If nobody is willing or entitled to be a guardian as prescribed above, then the Court may appoint a guardian on the application of any person interested in the welfare of the children concerned.