Workshop: Obtaining probate for a foreign domiciled deceased
Increasingly clients have assets in several countries. Colin Dunston examines obtaining ?a grant to an estate in England and Wales where the deceased died domiciled abroad
How do you obtain a grant to an estate in England and Wales where the deceased died abroad? It may be the grant of probate issued in the country ?of domicile (usually a Common-wealth country) can be resealed at the English Probate Registry.
Regulations for obtaining an English grant for a foreign domiciled deceased are set out in rule 30 of the Non-Contentious Probate Rules 1987. An English grant will be issued to a person entrusted with administration of the estate by the jurisdiction in the place of domicile. If no one is entrusted, the person beneficially entitled by law in the domicile can apply. The registrar may be authorised to issue a grant to a third party. In each case, an order is obtained from the Probate Registry for a grant to be issued.
Alternatively if the will is in English, appointing an executor, and all or a substantial amount of the English estate comprises immovable property, you can apply for a grant of probate as if English domiciled.
Examples of where this could happen is where a French domiciled testator dies leaving a will in English appointing English executors, dealing solely with his English estate (largely a London house). Executors apply for grant under rule 30(3).
Alternatively, a German domiciled national leaves English bank account and quoted securities. Her will is valid under German law and is accepted by the German Court. No executor is appointed but a German certificate of inheritance (Erbschein) has been issued listing the heirs. Application for grant under rule 30(1)(b).
Documents required:
? A sealed, certified copy of both will and grant of probate from the foreign court.
? If certificate of inheritance was issued, a sealed, certified copy from the foreign court.
? Depending on the probate procedure carried out in the country of domicile, an affidavit of law from a notary from the domicile may be needed. This would deal with the validity of the will and the devolution of the estate. May not be needed if (b) applies.
Procedure
(a) An Inheritance Tax Account, with domicile form IHT401 to be submitted to HMRC.
(b) An application for an order for issuing a grant may be needed, or it's acceptable to incorporate in the oath a clause for such an order.
(c) If documentation issued by the country of domicile is in a foreign language, a professional translation into English is needed.
(d) An affidavit of the law of the country of domicile regarding the validity of the will or the devolution of the estate may be required.
(e) On a practical basis, the solicitor might suggest to the foreign Executor or beneficiary that he be appointed as their attorney to apply for the grant.
(f)The wording of the personal representative's oath can ?be settled at the probate registry. SJ