The intricacies of cross-border probate: managing international assets in a Will

They say that death is the great leveller. It comes for us all, poor and rich alike. In death, we are all equal. But not everything is equal after death when the worldly affairs and property of the deceased must be ascertained, valued, collected and sold and distributed to the beneficiaries of the deceased, usually the surviving family members. This process, known as probate, can acquire added dimensions of complexity in cases where the deceased owned assets across different jurisdictions. Hence, anyone who has assets in different countries needs to take extra care and advice when it comes to making their Will.

Domicile, residence and nationality

For a person who has assets in many different countries, a question as to that person’s domicile may arise. Domicile is not the same as either nationality or residence. Domicile is the country which that person considers to be their home country.

Questions of domicile can often be complicated and can depend upon factors such as the person’s nationality, where they normally or habitually reside and where they pay their taxes. A person can, if so advised, make a simple declaration as to domicile, and, if they do, it may be that that jurisdiction is where the probate should be obtained. Furthermore, a person’s domicile is significant when it comes to Inheritance Tax.

This is not to say that a UK citizen who owns, for example, a holiday flat in Spain will find themselves with domicile issues. However, if a UK citizen spends most of their time in that country, pays their taxes in that country and considers Spain as home, then a declaration as to domicile may be required for an English Will.

Other legal systems

English common law stands apart from other legal regimes not just across Europe but across other parts of the world too. Under the law of England and Wales, a person making a Will (the testator) is free to leave their estate to whomever they wish, at least in theory. However, the same does not hold true for countries such as France, Spain or Italy, where inheritance is governed by laws which date back to Roman times and are more analogous to the rules of intestacy, i.e., they set out a strict order of inheritance upon death which no Will can change. Similarly, across much of the Arab world, the law of Sharia applies to all succession issues which are not affected by English inheritance law.

This is a serious consideration where a testator has immovable assets in any such countries. Immovable assets are land or property. A transfer of title to effect the wishes of the testator in a Will may require a separate application for a grant of probate in the local court or a re-sealing of an English grant in accordance with local laws.

The problem may be less acute if the testator only has moveable assets in another country, e.g., bank accounts, chattels, shares etc.

UK Will .v. foreign Will

Testators who are domiciled in England or Wales have a choice of whether to make a single Will which addresses all of their assets worldwide wherever they may be situated (also known as a ‘global Will’) or make a Will that covers only the testator’s assets in the UK and then make separate Wills for each foreign jurisdiction where the testator has assets.

With a global Will there is some risk if the testator has immovable assets in a country that does not recognise English succession law. Hence, it may prove ineffective outside of the UK. A foreign Will, or a suite of foreign Wills if more than one foreign country is involved, may provide more certainty but will certainly cost a lot more initially and incur another round of cost when and if they all need to be updated.

It is also worth noting that having a suite of wills for assets in different jurisdictions may help to speed up the probate process. Instead of obtaining a UK grant initially and then getting it re-sealed or proved in each separate country, all the probate procedures can be started at the same time.

Getting advice is essential

There is no one-size-fits-all answer. There are cases where a simple UK global Will is sufficient but it depends on the case and its circumstances.

For anyone who has immovable assets abroad, the right advice will be absolutely crucial. It is likely, too, that the testator will need to seek advice from a suitably qualified lawyer in the particular jurisdiction(s) where the immovable asset is situated. A prudent testator should also seek advice in respect of overseas assets and Inheritance Tax.

For further information and trusted legal advice regarding Wills and Probate, get in touch with us at Carlsons Solicitors.