Administering an estate is rarely completely straight-forward, but some estates can be a great deal more complex than others. Estates that include assets overseas can be particularly difficult to untangle, and often require a great deal of specialist knowledge.
There are all sorts of reasons why someone might leave behind assets overseas. This could be because the person had lived in a number of different countries, or it might be because they had business interests overseas, owned a holiday home, or had an overseas or offshore bank account.
An estate that has assets in both England/Wales and another country not under British jurisdiction is known as a ‘cross-border estate’.
Why are cross-border estates more complex to administer?
Cross-border estates can be difficult to manage because there is no universal international law about how estates should be dealt with. Rather, probate laws vary a great deal from country to county. This means that before you can even start administering the estate, you will need to determine which country’s laws will apply to the overseas assets.
England and Wales have fairly minimal probate laws, and in most cases individuals are free to leave their assets to whomever they please. However, in many countries there are strict laws about who can inherit from an estate, and any assets that are held in those countries are likely to be subject to those inheritance laws, regardless of what the individual may have written in their Will.
If you are responsible for administering a cross-border estate, we would highly recommend working with an experienced probate solicitor. Not only will a solicitor be able to handle the estate’s UK assets, they will also be able to co-ordinate with legal partners in the country where the assets are based in order to ensure all legal requirements of that country are met. This is especially important considering the fact that every cross-border estate will be subject to a unique set of circumstances, including:
- The jurisdictions involved.
- The personal circumstances of the person who has died.
- The type of assets involved.
- The value of the assets.
It’s also reasonably common for cross-border estates to have what is known as a ‘conflict of laws’. This occurs when probate laws in the countries involved contradict each other. It can be very difficult to navigate these conflicts and you will need an experienced solicitor to proceed very carefully according to the practices of the institutions and jurisdictions involved.
What are the first priorities for dealing with a cross-border estate?
If you’re responsible for dealing with a cross-border estate, many of the first priorities will be the same as if you were dealing with any other estate. Chief among these is determining whether or not the person who has died has left a valid Will. This is particularly important in the case of cross-border estates as the person who has died might have included instructions for dealing with overseas assets, or even information about measures they might have put in place in order to protect them.
It will also be important to seek valuations for any overseas assets as soon as possible. This might be straightforward if, for example, the overseas asset is a bank account. However, property or land may be more complicated to seek a valuation for, and this might be something you will need to seek legal advice on.
Another key priority in dealing with a cross-border estate is to determine where the person who has died was legally domiciled. This is not the same thing as which nationality they held, where they were born, where they died or where they were living. Rather, legal domicile is determined by which country the person considered to be their permanent home.
It may be easy to recognise where someone was legally domiciled in respect of a cross-border estate if, for example, someone lived mainly in one country but owned a holiday property in another. However, if, for example, that person had gone on to move permanently into the holiday home and planned to remain there indefinitely, the question of legal domicile may become more complicated.
Which country’s probate laws will assets need to be administered according to?
The question of legal domicile is important here, as it will have a big impact on which country’s probate laws will apply to the estate. In many cases, much of the person’s estate will be able to be administered according to the rules of the country in which they were legally domiciled.
This is particularly the case if the assets in question are ‘moveable’. This could include overseas bank accounts, art collections or other collectibles. Often, it will be determined that moveable assets should be administered according to the law in the country that was the legal domicile of the person who has died. However, any immoveable assets, such as property or land, will usually need to be administered according to probate law in the country in which they are located.
Though distinguishing between moveable and immoveable assets in this way is common, not all countries will do this. In some countries, all assets that are held there will need to be administered according to local probate laws.
Will a Grant of Probate be required?
Just like in England and Wales, whether or not a Grant of Probate will be required in order to administer overseas assets will depend on circumstances, location and the value of the asset. Some countries may allow you to administer assets under a certain value without a Grant of Probate, others will always require one.
There is also some variation on whether or not a country will accept a Grant of Probate issued by the British government, or whether they will require you to apply for a grant from their own government. Again, a specialist solicitor will be able to assist you with this and co-ordinate legal support from overseas when necessary.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like to discuss how we can assist, please contact us.