Tax

Residence and domicile

How does an individual become taxable in your jurisdiction?

There are no income or capital gains taxes.

Income

What, if any, taxes apply to an individual’s income?

There is no income tax.

Capital gains

What, if any, taxes apply to an individual’s capital gains?

There is no capital gains tax.

Lifetime gifts

What, if any, taxes apply if an individual makes lifetime gifts?

Subject to certain exemptions, for example, where there has been a transfer of land for ‘love and affection’ between family members, stamp duty is payable in the Cayman Islands on gifts of land located within the Islands by the person receiving the gift.

Ad valorem stamp duty on the transfer of land is 7.5 per cent of the market value. First-time Caymanian purchasers of land are eligible for reduced rates of duty of zero to 2 per cent, depending on the value of the property being purchased and whether it is undeveloped land or developed property. The Minister of Finance is able to waive or abate the whole or part of the duty payable, and an application can be made for a waiver of stamp duty with respect to transfers that do not result in any change of beneficial ownership. There are also waivers of stamp duty when property passes because of natural love and affection between certain family members.

Inheritance

What, if any, taxes apply to an individual’s transfers on death and to his or her estate following death?

There are no estate taxes.

Real property

What, if any, taxes apply to an individual’s real property?

Other than stamp duty, referred to in question 4, there are no taxes applicable to real property in the Cayman Islands.

Non-cash assets

What, if any, taxes apply on the import or export, for personal use and enjoyment, of assets other than cash by an individual to your jurisdiction?

Imported items are generally subject to a 22 per cent import duty. This is subject to certain personal allowances. There are concessions on some goods, and certain items, such as coffee and books, are duty-free.

Other taxes

What, if any, other taxes may be particularly relevant to an individual?

There are no other applicable taxes, such as value added tax, in the Cayman Islands.

Trusts and other holding vehicles

What, if any, taxes apply to trusts or other asset-holding vehicles in your jurisdiction, and how are such taxes imposed?

There are no other applicable taxes in the Cayman Islands, except that on the establishment of a Cayman trust CI$40 stamp duty is payable. The income received by the trustees is not subject to any Cayman Islands tax. There are no Cayman Islands fiscal implications arising out of transactions entered into by trustees or distributions to beneficiaries.

Charities

How are charities taxed in your jurisdiction?

Charities are not taxed.

Anti-avoidance and anti-abuse provisions

What anti-avoidance and anti-abuse tax provisions apply in the context of private client wealth management?

Because the Cayman Islands does not impose any income, capital gains or estate taxes, the type of anti-avoidance provisions that are common to onshore jurisdictions are not present in the Cayman Islands. The Cayman Islands is, however, subject to various regulatory regimes that aim to prevent multinational tax avoidance. The Cayman Islands participates in the automatic exchange of information regimes provided by the US Foreign Account Tax Compliance Act and the Common Reporting Standard.

Economic substance legislation has also recently come into force, which requires certain ‘relevant entities’ that are registered and tax resident in the Cayman Islands and are carrying on ‘relevant activities’ to report on and satisfy the ‘economic substance test’ as prescribed in the legislation. However, private wealth structures are often unlikely to be subject to such requirements as the entities within these structures would typically not be carrying on any of the specified activities that trigger the requirements, or, if they do undertake such activities, the relevant entity will often be subject to reduced requirements, which can be satisfied through the maintenance of a registered office and the completion of mandatory filings.

Trusts and foundations

Trusts

Does your jurisdiction recognise trusts?

Trusts are recognised in the Cayman Islands and, as a general rule, trusts governed by the laws of other jurisdictions are also recognised. Although the Convention on the Law Applicable to Trusts and on their Recognition 1985 has not been extended to the Cayman Islands, the courts of the Cayman Islands recognise most trusts established under foreign law.

A range of trusts may be established in the Cayman Islands including discretionary trusts, fixed interest trusts and charitable and non-charitable purpose trusts (see below). The principal legislation applicable to trusts is set out in the Trusts Law (2018 Revision). Trustees are ultimately subject to the jurisdiction of the Cayman Islands courts.

Reserved powers trusts (in which powers are reserved to the settlor or conferred on the protector or other person) are also common in the Cayman Islands (Part III of the Trusts Law (2018 Revision)).

The Special Trusts (Alternative Regime) (STAR) Law 1997 (which is now contained in Part VIII of the Trusts Law (2018 Revision)) established STAR trusts, which are unique to the Cayman Islands. STAR trusts can be put to a wide range of applications for both institutional and private clients. The beneficiaries of a STAR trust may be persons or purposes, or a combination of the two, and the purposes may be charitable or non-charitable (provided that such purposes are lawful and not contrary to public policy).

STAR trusts can facilitate a separation of the right to benefit under a trust from the right to enforce the terms of the trust. This means that provided there is an effective enforcement mechanism (in the form of an appointed enforcer), the beneficiaries will not be able to sue the trustee or obtain information concerning the trust.

Trusts that do not have any beneficiaries resident or domiciled in the Cayman Islands can register as exempted trusts with the Registrar of Trusts. While registration is not required, the advantage is that it allows for the issuing of a tax undertaking from the government, which provides that even if the law changes, no future taxes (in any form) will be levied on the trust’s assets in the Cayman Islands. The undertaking can apply for a period of up to 50 years.

Private foundations

Does your jurisdiction recognise private foundations?

Private foundations, as known in civil law jurisdictions, do not exist in the Cayman Islands. Depending on the individual circumstances surrounding a particular foundation, they may be recognised in the Cayman Islands as a type of company instead.

However, the Foundation Companies Law 2017 provides that a Cayman Islands foundation company may be established as a new form of Cayman company and will share many of its features with regular exempted Cayman companies, save that it will be prohibited from paying dividends to its members.

Same-sex marriages and civil unions

Same-sex relationships

Does your jurisdiction have any form of legally recognised same-sex relationship?

The Marriage Law (2010) defines marriage as a union between a man and a woman as husband and wife. The Cayman Islands Constitution provides that: ‘Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.’ Cayman Islands legislation does not specifically recognise foreign same-sex marriages or civil partnerships or both; however, the Immigration Appeals Tribunal in 2016 found that the Cayman Islands Constitution does not allow for discrimination against foreign same-sex marriages, and that there was scope for a dependant to include a spouse in a same-sex marriage pursuant to the Immigration Law where the parties were lawfully married in their respective countries.

Heterosexual civil unions

Does your jurisdiction recognise any form of legal relationship for heterosexual couples other than marriage?

The Cayman Islands does not recognise any form of legal relationship for heterosexual couples other than marriage.

Succession

Estate constitution

What property constitutes an individual’s estate for succession purposes?

All property, whether owned under law or equity, constitutes an individual’s estate. Certain assets, such as real property held on joint tenancy, do not pass to an individual’s estate, but rather transfer to the joint surviving owner upon death.

As under English law, there are two types of co-ownership under Cayman Islands law.

  • In a joint tenancy, the co-owners hold an indivisible share of the property. On the death of a joint tenant, the property vests in the surviving joint tenant or tenants by operation of law and does not form part of his or her estate on death.
  • In a tenancy-in-common, the co-owners own a separate and identifiable share in the property and on death, the share of the property forms part of the deceased co-owner’s estate (so that is passes under the terms of his or her will or intestacy).
Disposition

To what extent do individuals have freedom of disposition over their estate during their lifetime?

The Cayman Islands maintains that individuals have complete freedom of disposition over their estate during their lifetime, provided that the assets are not encumbered by any legal or equitable co-ownership or other interests. There is no comity of property regime.

To what extent do individuals have freedom of disposition over their estate on death?

The Cayman Islands maintains complete freedom of disposition of estates upon death, and there are no forced heirship rules. Furthermore, pursuant to Part VII (Trusts-Foreign Element) of the Trusts Law (2018 Revision) of the Cayman Islands, Cayman Islands law prevails over the law of the settlor’s jurisdiction governing forced heirship or non-recognition of trust structures.

Trusts governed by the laws of the Cayman Islands or dispositions of property held on these trusts cannot be held void, voidable, liable to be set aside or defective, nor can the capacity of any settlor be questioned because:

  • the laws of any foreign jurisdiction prohibit or do not recognise the concept of a trust;
  • the trust or disposition avoids or defeats rights, claims or interests conferred by foreign law on any person because of a personal relationship to the settlor or any beneficiary (whether discretionary or otherwise) or by way of heirship rights; or
  • the trust or disposition contravenes any rule of foreign law, any foreign judicial or administrative order or action that recognises, protects or enforces such rights, claims or interests.
Intestacy

If an individual dies in your jurisdiction without leaving valid instructions for the disposition of the estate, to whom does the estate pass and in what shares?

Where a person domiciled in the Cayman Islands dies without leaving a valid will, the disposition of the deceased’s estate will pass in accordance with the Succession Law (2006 Revision). In such a case, the estate will pass to family relatives in accordance with a fixed order of priority, whereby the spouse has the highest priority, followed by the issue of the deceased and then other relatives.

Where the deceased is survived by a spouse, the spouse has an absolute entitlement to all personal chattels and a portion of the residuary estate, as follows:

  • 100 per cent where the deceased leaves no surviving issue or parents;
  • 75 per cent where the deceased is survived by parents but no issue, with the remaining 25 per cent passing to the parents; and
  • 50 per cent (or CI$20,000, whichever is greater) where the deceased leaves issue, with the remainder held on trust in equal shares for the deceased’s issue until they attain 18 years or marry.

Where there is no surviving spouse, the estate will pass absolutely to the deceased’s issue, if any. Where there is neither a surviving spouse nor issue, the estate will pass absolutely to any surviving parents in equal shares. Where there is no surviving spouse, issue or parents, the legislation provides an order of priority consisting of full siblings, half-siblings, grandparents, uncles and aunts.

Where there are no relatives within any of the specified categories, the deceased’s estate will pass to the Crown, which has discretion to provide for any dependants, family members or other persons for whom the deceased might reasonably have been expected to make provision.

Adopted and illegitimate children

In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?

Pursuant to the Status of Children Law 2003, the status of a child is not dependent on whether he or she is born inside or outside of marriage. Where an adoption order has been made pursuant to the Adoption of Children Law 2013 or under the laws of any other jurisdiction, the child is the child of the adoptive parents as if they were his or her natural parents. Unless a contrary intention appears in the will of the deceased, both illegitimate and adopted children shall be treated the same as natural children.

Distribution

What law governs the distribution of an individual’s estate and does this depend on the type of property within it?

The distribution of real property is governed by the lex situs, and all other property is governed by lex domicilii.

Formalities

What formalities are required for an individual to make a valid will in your jurisdiction?

The requirements of a valid will are provided for under the Wills Law (2004 Revision). To create a valid will (ie, applicable to persons dying domiciled in the Cayman Islands at death), a testator must possess the requisite testamentary and mental capacity to understand and approve the contents of the will, and the testator must have been free from undue influence. A will must be in written form and signed by the testator in the presence of two attesting witnesses.

Foreign wills

Are foreign wills recognised in your jurisdiction and how is this achieved?

A will is admissible to be resealed for proof by the Grant Court of the Cayman Islands if it has been accepted by the country of domicile as a valid testamentary document and if it is executed in accordance with the law of the Cayman Islands.

Where a deceased person was domiciled in a foreign country, the courts of the Cayman Islands will apply the law of the foreign country when dealing with the succession of movable property.

Administration

Who has the right to administer an estate?

Where probate is granted under a will that named an executor of the estate, the Grand Court will appoint the named person as the representative of the estate.

Where a will is admitted to probate but no person is named, the Grant Court may appoint a person to be administrator of the estate pursuant to Rule 32 of the Probate and Administration Rules (2008 Revision).

Where the deceased died wholly intestate, the Grand Court may appoint a person to be the administrator of the estate pursuant to Rule 33 of the Probate and Administration Rules (2008 Revision). The order of priority of entitlement in relation to the estates of persons dying domiciled outside the Cayman Islands, is set out in Rule 37.

How does title to a deceased’s assets pass to the heirs and successors? What are the rules for administration of the estate?

Once a grant of probate has been issued to the estate representatives by the court, the representatives are entitled, and indeed obliged, to gather and take control of the assets of the deceased person and to require assets such as bank accounts and shares to be either transferred into the names of the executors, or directly to a person who is ultimately entitled to the same under the terms of the relevant will.

In the absence of leave of the Grand Court, no grant of probate or letters of administration with the will annexed can be issued within 21 days of the death of the deceased. No grant of letters of administration can be granted within 28 days of the death of the deceased. The grant must be obtained within six months of death or two months of the termination of any dispute concerning the right to a grant unless special leave of the Grand Court is obtained. Special leave is ordinarily given where a reasonable explanation for the delay is provided, subject to the objections of those entitled in a lesser degree of priority. There is no time limit for an application for the resealing of a foreign grant.

An estate must be administered within a one-year period from the time of the grant of probate, unless the Grand Court has granted time extension for the submission of the final accounting of the estate.

Challenge

Is there a procedure for disappointed heirs and/or beneficiaries to make a claim against an estate?

The validity of a will and the identity of the applicant for probate can be challenged at the appropriate time during the application for probate. A beneficiary under a will or the rules of intestacy can also apply to the Grand Court to challenge the manner of administration of the estate. Administration cannot be challenged on the basis that no adequate provision was made for dependants of the deceased or otherwise.

Capacity and power of attorney

Minors

What are the rules for holding and managing the property of a minor in your jurisdiction?

A minor cannot hold title to property in the Cayman Islands. Section 32 of the Trusts Law (2018 Revision) provides that a trustee may pay or apply the property in which a minor has an interest to the parent or guardian of the minor for his or her maintenance, education or benefits. Upon attaining the age of 18, the trustee shall pay any unvested interest to the individual.

Age of majority

At what age does an individual attain legal capacity for the purposes of holding and managing property in your jurisdiction?

A person attains full age at 18.

Loss of capacity

If someone loses capacity to manage their affairs in your jurisdiction, what is the procedure for managing them on their behalf?

Pursuant to the Grand Court Law, the Cayman Islands Grand Court has the power to appoint a guardian for a person, or the estate of a person, of unsound mind or suffering from mental illness.

When making a determination for guardianship under the Grand Court Law, the court will hear evidence from the applicant party and any opposing parties regarding the suitability of certain individuals to act as legal guardian, and will require medical and expert evidence regarding the mental capacity of the patient.

Immigration

Visitors’ visas

Do foreign nationals require a visa to visit your jurisdiction?

Foreign nationals require a visitors’ entry permit, which is typically limited to a six-month period. Persons requiring a visa to visit the Cayman Islands must apply to the nearest British embassy or consulate with a visa section.

How long can a foreign national spend in your jurisdiction on a visitors’ visa?

A foreign national can usually stay within the jurisdiction for a six-month period but may apply to the Department of Immigration for an extension.

High net worth individuals

Is there a visa programme targeted specifically at high net worth individuals?

A person may apply to the Chief Immigration Officer for permanent residence if they are of independent means whereby they have sufficient resources to adequately maintain themselves and their dependants.

There are four types of independent means categories:

  • a residency certificate for persons of independent means, which grants permanent residency for a period of 25 years;
  • a residency certificate (substantial business presence), which entitles the person to reside and work in the business in which he or she has invested or are employed in a senior management position;
  • a certificate of direct investment, which enables a person to apply for 25 years of residency as a high net worth investor with the right to work in the business or businesses in which he or she holds an investment; and
  • a Certificate of Permanent Residency for Persons of Independent Means, which grants residency for life, and the holder may apply to the Caymanian Status and Permanent Residency Board for a variation to allow for the right to work for any employer, but only in particular occupations specified by the Board.

If so, does this programme entitle individuals to bring their family members with them? Give details.

The right to bring dependants may vary depending on the type of grant. The Cayman Islands government website should be consulted (www.immigration.gov.ky).

Does such a programme give an individual a right to reside permanently or indefinitely in your jurisdiction and, if so, how?

Yes, in some cases. The Cayman Islands government website should be consulted (www.immigration.gov.ky).

Does such a programme enable an individual to obtain citizenship or nationality in your jurisdiction and, if so, how?

Yes, in some cases. The Cayman Islands government website should be consulted (www.immigration.gov.ky).