With increasingly more of the UK population taking the decision to emigrate to sunnier climates – particularly during their Autumn years or post-retirement – it’s perhaps of little surprise that Executors are finding themselves having to deal with probate matters for loved ones who have chosen to live abroad.
In this article we take a look at some of the implications involved with overseas probate and what might happen when such a situation arises.
Dealing with foreign property and other associated assets
There are generally two types of situation here – the first when the deceased has made a Will and secondly, of course, when they haven’t.
If it’s established that a Will has been made then this may (or may not) include assets within the UK (for example, stocks, shares, property and so on). A lot of people who decide to emigrate decide to retain some assets in the UK for a whole of host of reasons – for example, if they wished to return at some point in the future or simply didn’t enjoy their new lifestyle abroad. In this instance, there may also be a foreign Will to deal more specifically with assets in their place of residence – and the rules to this will, of course, naturally be determined by their country and associated legislation relating to probate.
If, on the other hand, there isn’t a Will then any assets are ordinarily dealt with in accordance with the succession rules of the country where the assets are held. As you might expect, this varies massively between each jurisdiction and can often prove to be quite a complex procedure.
Once it’s been established where the assets are held – and which jurisdiction applies – then it’s usually appropriate to obtain a Grant of Probate. This is basically a legal document which is needed to administer the estate of the deceased and is usually overseen by the Executors to the Will (assuming there are any). It also needs to be resealed in whichever country the assets are held.
Is it more complicated than UK probate?
Sometimes different legislation across different countries can mean that international probate is more complicated than UK probate although this again depends on whether or not the deceased has left a Will and/or put procedures into place relating to this.
If a person dies owning assets in two or more countries then it’s usually necessary for probate to be obtained in each location and again, this very much depends on specific requirements. For example, should the deceased pass away in Germany then the Executors would need to obtain a Certificate of Inheritance known as an ‘Erbschein’ in order for any estate to be released whereas in Australia, the Colonial Probates Acts permit resealing of a Grant of Probate in England in Wales.
Where assets are held across different jurisdictions then it may well mean applying for probate in each separate country and that, of course, can be a lengthy and complicated process.
Is there a way to make it any easier?
Yes. If assets are held across several different countries then an international Will can certainly help simplify the process. In addition to actual assets, of course, there are also tax implications to consider and this often necessitates specialist advice.
What does the law state about overseas probate?
As might be expected there’s quite a lot of legislation surrounding the concept of overseas probate. In some cases, where the provisions of the Wills Act 1963 have been complied with it’s certainly possible to apply English jurisdiction.
Otherwise the EU Succession Regulation (650/2012) (Brussels IV) may apply and although it’s not been ratified in the UK it can certainly have implications if someone passes away in an EU country. Again, however, this very much depends on applicable jurisdiction.
As a rule of thumb, for deaths after August 2015 there are two distinct tests to govern succession in those member states that have ratified the regulation:
- Has the deceased made a Will and if so, has it been made clear which applicable legislation should apply (for example, if the deceased passed away in Germany does it state whether English or German law applies?)
- If not (or if there’s no Will in place), does the ‘habitual residence’ rule apply? If so (and it applies automatically), the succession is generally governed by the country where the deceased was last resident.
So it’s important to obtain legal advice?
Absolutely. As we’ve already seen, the issue of overseas probate is at best complex and certainly needs to explored in order to ensure that final wishes are properly addressed and dealt with – ideally with the minimum amount of administration at what, after all, is already a stressful time for those left behind.