If a person who did not live permanently in the UK dies leaving assets in the UK, a Grant of Probate will be required to deal with these assets.
If the deceased was from a commonwealth country and a Grant of Probate or equivalent document has already been obtained in that country, the executor or administrator can reseal the probate in the UK.
If the deceased is from a non-Commonwealth country however, a new English grant will need to be obtained so that the executor or administrator can release the UK assets.
Applying for Probate where the deceased died domiciled outside of the UK.
Rule 30 of the Non-Contentious Probate Rules 1987 states that where the deceased died domiciled outside England and Wales, the probate registrar may issue a grant to:
(a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or
(b) where there is no person so entrusted, to the person(s) beneficially entitled to the estate by the law of the place where the deceased died domiciled.
In addition to the usual English Probate Process, where the deceased was domiciled outside of the UK, the English Probate Registry will therefore also require evidence as to:
- the country of the deceased’s domicile
- that the person applying for the grant is the proper person to apply on the basis of the law of the country of the deceased’s domicile.
The lawyer/ executor dealing with the estate will need to understand how to determine the domicile of the deceased for UK inheritance purposes in accordance with the relevant laws of England and Wales.
If the country of the deceased’s domicile has been determined to be a country outside of the UK, evidence of who the Grant should be issued to will need to be obtained and submitted to the probate registry in accordance with Rule 30.
Evidence of the law of the deceased’s domiciled
This evidence is usually provided in the form of an affidavit of foreign law (aka a certificate of law).
Rule 19 of the Non-Contentious Probate Rules states that where evidence as to the law of any country or territory outside England and Wales is required on any application for a grant, the registrar may accept either:
(a) an affidavit from any person whom, having regard to the particulars of his knowledge or experience given in the affidavit, he regards as suitably qualified to give expert evidence of the law in question; or
(b) a certificate by, or an act before, a notary practising in the country or territory concerned.
The above may not be necessary however where the English estate is made up of only (or substantially) of immoveable property (ie land, houses etc).
Rule 30 3.(b) states where the whole or substantially the whole of the estate in England and Wales consists of immovable property (ie land, houses etc) a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased was domiciled in England and Wales.
If you are a UK lawyer or an executor dealign with the application for UK probate for a deceased who died domiciled abroad, Worldwide Lawyers will be happy to assist.
Worldwide Lawyers have a network of English-speaking foreign lawyers and can assist with obtaining an affidavit or law/ certificate of law.
Contact us on 01244 470339 or email email@example.com and our experienced team will be happy to help.