Overseas Probate: The Process

The probate process can be a difficult and stressful one. There are a number of reasons why an estate may have to 'go to probate', the most common one being that an individual failed to make a will; that is, they died intestate. However, the complexities of the problem are further exacerbated when the individual in question lived overseas.

Expats

The number of Britons choosing to move abroad has increased rapidly in recent years. While it has tailed off over the past few months, as a result of the rapidly weakening pound, there are still huge expat communities around the world, particularly in Europe. These individuals frequently retain some assets in the UK, either because they intend to return at some point or for the benefit of children or other dependants. As such, it is becoming more common for situations to arise in which an individual dies, living outside the UK but with assets here.

The process of dealing with probate in these cases can be very lengthy; this writer had personal experience of this recently, with one case taking 18 months to resolve. Essentially, you will require a Grant of Probate or Letters of Administration in order to settle the probate. This will be in addition to any such documents granted in the individual's country of residence, and is likely to occur after probate has been settled there. The major delaying factor could be receiving the relevant documents from that country, in the event that their will and similar items are not in the UK.

Exceptions

There are some circumstances in which a Grant or Letters will not be needed. Essentially, these are when the value of the estate is less than £5,000 (in which case banks will almost always release assets on production of a death certificate), or when the assets are jointly held (in which case they will pass automatically to the other owner, if they are still living). However, if the estate includes shares in a UK listed company, a Grant or Letters will definitely be required.

In order to acquire a Grant of Probate or Letters of Administration, you will require a number of documents. Primarily, you will need to determine the individual's country of domicile. Further information on this is available in articles elsewhere on this site. This is important for tax purposes. You will also require the will. If there is no will, you will be required to provide documentary evidence regarding the rights of succession in the home country.

It is also worth remembering that UK courts will generally automatically grant powers of administration to an administrator appointed in the deceased individual's country of domicile. If this is a Commonwealth country the process is simplified significantly. Finally, you should remember that most countries are covered by the 'double tax treaty', which prevents assets being taxed twice. You should therefore find out whether or not the assets have already been subject to death duties in the country of domicile, before they are subject to IHT here.

In all cases the advice of a solicitor should be sought, in order to ensure that the process is as smooth as possible.