Affidavit of Succession and Assets Held in Trust

If you are searching for an affidavit of succession in Mauritius, you are usually facing one of two situations: a relative has died and the family must establish who inherits, or you are planning ahead and wondering how a trust would change that process. This guide explains what the affidavit is for, what it covers, and why assets held in a trust follow a different path.

It is general information, not advice. The outcome in a real estate depends on the family, the assets and the documents, and should be checked with a notary or adviser.

What an affidavit of succession does

An affidavit of succession is, in practical terms, a sworn declaration made after a death. It identifies the deceased, states whether there is a will, names the persons entitled to the estate and describes the assets that pass to them. Banks, land registries and other institutions rely on it, or on the documents behind it, before releasing or transferring what belonged to the deceased.

The key idea is that the affidavit deals with the estate: the assets the deceased owned in their own name at the moment of death. Whatever the deceased did not own at that moment is, by definition, not part of it.

What it typically covers

• the identity and civil status of the deceased and of the heirs;
• the existence or absence of a will;
• the persons entitled under the will or, failing one, under the rules described in who inherits when there is no will;
• the main assets and liabilities of the estate, such as bank balances, shares and land in the deceased's own name.

What it does not cover

It does not reach property that the deceased had validly placed in trust during their lifetime. It also does not replace the family's other obligations, such as tax filings, which are covered separately in inheritance tax in Mauritius.

The succession procedure in outline

The succession procedure in Mauritius is organised by the civil law inherited from France, and the exact formalities depend on the type of asset and on the heirs. The sequence below shows the logic, not a legal checklist.

Two points deserve attention. First, many heirs are protected by law whatever the deceased wrote; see forced heirship and trusts for how that protection works. Second, a spouse's rights depend on the couple's property regime, as explained in matrimonial regimes and your family assets and surviving spouse inheritance rights.

Why trust assets sit outside the affidavit

A trust works by separating ownership from benefit. The settlor transfers assets to a trustee, who holds them under the trust deed for the beneficiaries. Once a valid transfer has been made, those assets are no longer owned by the settlor in their own name. At death, they are therefore not part of the estate that the affidavit describes.

Several rules of the Trusts Act 2001 support this reading:

• Under section 11, a trust is presumed to be irrevocable by the settlor and the settlor's legal representative unless the deed expressly provides for revocation. The settlor's heirs do not simply step into a power to take the assets back.
• Under section 8, the settlor may also be a trustee, beneficiary, protector or enforcer, but cannot be the sole beneficiary of the trust they created.
• Also under section 8, the transfer made by a settlor who is not a Mauritian citizen cannot be set aside by reference to the succession rules of that person's domicile or nationality.

That last point matters for families with links to several countries. It is explained further in wills for foreigners owning assets in Mauritius and how a Mauritius trust compares with a will.

A comparison

The last row is a caution. A trust is not an automatic shield. The fuller picture is in forced heirship and trusts and challenging a trust in court.

What still happens when the settlor dies

Trust assets leave the affidavit, but the death of the settlor is not irrelevant to the trust. The trustee will normally check the deed, confirm who the beneficiaries are, and continue to administer the assets or begin distributions as the deed provides. Where the deed is silent or unclear, the trustee has to act within the Trusts Act 2001 and its duty to the beneficiaries. The consequences are set out in what happens to a trust when the settlor dies.

Where a protector exists, their powers under the deed and section 24 of the Trusts Act 2001 may also come into play. Unless the deed says otherwise, a protector can remove and appoint trustees, change the governing law and the place of administration, and withhold consent to certain acts. See the trust protector for the role.

Mixed situations: assets partly in trust, partly not

Most families do not put everything into a trust. A typical estate has some assets in the deceased's own name and others held by a trustee. In that case:

1. the affidavit of succession covers only the personal assets;
2. the trustee handles the trust assets in line with the deed;
3. the two tracks should be consistent, so that the will and the deed do not contradict each other.

Gaps appear when an asset was meant to go into the trust but was never actually transferred. Such an asset remains in the estate and follows the succession rules. A periodic check, such as the annual family trust review, is a simple way to catch it.

Real estate in Mauritius

Land and buildings are a frequent source of confusion. A transfer of Mauritian real estate to a non-charitable purpose trust is void under section 19(3) of the Trusts Act 2001. A trust with identified beneficiaries is a different matter, and the practical steps differ; property held through a trust covers the question.

Limits: when a trust may not remove assets from scrutiny

Placing assets in trust does not guarantee that a court, a creditor or an heir will accept the result. Points to bear in mind:

• A settlor who keeps too much control may expose the trust to the argument that it is a sham. See sham trusts and how much control a settlor can keep.
• A foreign trust is governed by its own terms and law, but under section 60 of the Trusts Act 2001 it is not enforceable in Mauritius to the extent that it would amount to an offence, be contrary to public policy or apply directly to immovable property in Mauritius.
• Confidentiality is protected by section 33 of the Trusts Act 2001 as rewritten by Act 9 of 2019 (in force 29 May 2019): a court orders disclosure only on the application of an investigating authority, where the information is required in good faith for an investigation or proceedings relating to a financial crime.

Compliance records also exist in the background. The trustee must keep accounts and a register of beneficiaries and settlors (section 38(3) of the Trusts Act 2001), and the accounting records must be kept for at least 5 years after the transactions concerned are completed. A qualified trustee must also supply information to the register of trusts kept by the Financial Services Commission (FSC) under section 26A of the Financial Services Act 2007. The existence of that register is discussed in is there a register of trusts in Mauritius.

Practical steps for a family

• List every asset and note whether it is in your own name, in a company or in trust
• Confirm that each asset meant for the trust was formally transferred
• Make sure the will and the trust deed work together
• Keep the letter of wishes current
• Tell the family where the key documents are kept, without disclosing more than necessary
• Ask an adviser how forced heirship and your matrimonial regime apply to your situation

If you want the analysis done for your own circumstances, you can send a request through the contact form and it will be relayed to an FSC-licensed corporate service provider (Management Licence).