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Foreign Domiciles with UK assets28th October 2019 Wills, Trusts & Estate Planning
My colleague, Elaine Roche, recently wrote a blog about factors that should be considered when purchasing property in a foreign jurisdiction. In this blog I will be looking at a reverse scenario where those who are domiciled outside of England and Wales pass away with assets here in the UK.
Foreign investment in the UK has spiked in recent years, particularly with the growth of the property market across major cities. For example, the flat I rent is in a newly built apartment block in the Salford/Castlefield area and is owned by two individuals domiciled outside the UK. These situations are increasingly common, and JMW’s large and experienced Real Estate department act in such purchases regularly. If you would like assistance with a transaction you can contact the Real Estate department here.
However, possessing any assets in the UK has various implications for personal representatives of a deceased domiciled in a foreign jurisdiction and what impacts upon action they may need to take in order to collect and deal with such assets.
One useful system to assist personal representatives is known as recognition, created by the Administration of Estates Act 1971. Recognition is a system whereby a grant of representation obtained in either the Probate Courts of Scotland or Northern Ireland where the deceased was domiciled will be recognised as if it were a grant issued in England and Wales. Helpfully, this system also allows an English and Welsh grants of representation to be recognised in the Scottish and Northern Irish jurisdictions.
For a deceased domiciled a little further afield, re-sealing may be able to assist personal representatives in dealing with UK assets. Re-sealing was created under the Colonial Probates Act 1892, and provides that a grant of representation for a deceased person domiciled in one of the countries or territories to which the Act applies can be sealed and therefore given effect as if it were granted by any Probate Court in the United Kingdom. The list of countries to which the Act applies is quite extensive, allowing re-sealing to be a very useful tool for personal representatives. However, there is a defined procedure within the Non-Contentious Probate Rules 1987 which must be followed in order to have an applicable grant re-sealed, including the submission of HMRC Accounts relating to any Inheritance Tax that may be payable on UK assets.
If neither recognition nor re-sealing are available, personal representatives may need to obtain a new grant of representation in England and Wales to deal with the UK assets of deceased persons domiciled overseas. For deceased persons without a valid Will either in their own jurisdiction or in the UK, it’s likely that the Rules of Intestacy will apply as to what grant to obtain and who can apply for it. For deceased persons who have a Will from another jurisdiction, the Wills Act 1963 allows that such a Will may be admissible to proof in England and Wales if the Will was either:
- Accepted as a valid testamentary document in the country where the deceased was domiciled; or
- Executed in accordance with the law of the place the deceased was domiciled either at their death or at the time the document was executed.
In such scenarios, various supporting documents would need to be lodged to evidence that the deceased’s Will has been accepted in or complies with the law of the relevant jurisdiction together with demonstrating the applicant’s entitlement to the grant. Nevertheless, the validity of a foreign Will itself does not necessarily mean the dispositions within would be considered effective in the UK.
If you are a personal representative of a deceased person domiciled outside the UK, we would encourage you to make contact with us if you would like to arrange an initial free consultation to discuss your position and how best we can assist you in dealing with the estate.