Administering the estate of a deceased person is a complex and often lengthy process. Matters can become significantly more complicated when the estate includes assets located outside the UK, such as property, bank accounts, shares, or business interests. At Blackstone Solicitors, we regularly advise clients across England and Wales who are dealing with cross-border estates and navigating the intricacies of probate for overseas assets.
This article explores how probate works when foreign assets are involved, the legal and practical challenges that can arise, and the steps executors and administrators must take to ensure that the estate is dealt with properly.
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What Is Probate?
Probate is the legal process by which a person’s estate is administered after their death. It involves:
- Proving the validity of the Will (if there is one)
- Identifying and valuing the assets and liabilities of the estate
- Applying for a Grant of Probate or Letters of Administration
- Paying any debts and taxes
- Distributing the estate to beneficiaries
Where the deceased owned assets in England and Wales, the personal representatives (executors or administrators) must obtain a Grant of Representation from the Probate Registry before dealing with those assets.
When Are Overseas Assets Relevant in Probate?
Overseas assets come into play when a deceased individual owned property or financial interests outside the UK. These can include:
- Real estate (holiday homes, investment properties)
- Bank accounts or investment portfolios in foreign banks
- Shares in overseas companies
- Business interests based abroad
- Pensions or insurance policies located outside the UK
- Moveable assets such as cars, boats or art collections held overseas
These foreign assets must usually be administered in accordance with the laws of the country where they are located — which may or may not align with the laws of England and Wales.
Domicile and Jurisdiction: Where Does Probate Apply?
The legal process of administering a deceased person’s estate can vary greatly depending on their domicile and the location of their assets.
Domicile
Domicile is a legal concept used to determine a person’s permanent home for the purposes of succession, tax, and jurisdiction. It plays a key role in probate involving international assets. A person can only have one domicile at a time, and it may differ from their residence or nationality.
If the deceased was domiciled in England or Wales, their worldwide assets are subject to UK inheritance tax, and probate will be required to deal with their estate both at home and abroad.
If the deceased was domiciled abroad, only their UK assets will fall under the jurisdiction of the courts in England and Wales — though foreign succession laws may apply to the overseas portion of their estate.
Dealing with Overseas Assets: Key Considerations
- Local Probate Requirements
Most countries require that local probate or an equivalent legal process be carried out before foreign assets can be accessed or transferred. This usually means that the UK Grant of Probate must be either:
- Resealed (accepted and validated) in the foreign country, or
- A separate grant obtained in that jurisdiction under its own legal system
Some countries, such as those in the Commonwealth (e.g. Australia, Canada, New Zealand), may have a simplified process for resealing a UK Grant of Probate, provided certain conditions are met.
Other countries, particularly civil law jurisdictions such as France, Spain, or Germany, do not recognise UK probate as valid and require a separate legal process to access the foreign assets.
Each jurisdiction has its own rules, documentation requirements, and timelines.
- Translation and Legalisation
If dealing with probate in a foreign jurisdiction, documents such as the Will, death certificate, or Grant of Probate may need to be:
- Translated by a certified translator
- Legalised with an apostille (under the Hague Convention)
- Notarised to confirm their authenticity
These additional steps can delay the process and add to the cost.
- Foreign Succession Laws
In many countries, particularly in Europe, the concept of forced heirship applies. This means that local laws dictate who inherits certain portions of the estate, regardless of what the Will says.
For example:
- In France, children are entitled to a fixed share of their parent’s estate
- In Spain, certain heirs cannot be disinherited
- In Italy, there are rules about minimum inheritance shares
If the deceased owned property in such a country, local succession laws may override provisions in their English Will, especially if the Will does not clearly state which law is to govern the succession of overseas assets.
- Double Taxation and Inheritance Tax
UK inheritance tax applies to the deceased’s worldwide assets if they were domiciled in the UK. If overseas assets are taxed in another country as well, there is a risk of double taxation.
However, the UK has double taxation treaties with several countries that allow relief to be claimed where inheritance tax has already been paid abroad. These include countries such as the United States, South Africa, Ireland, France, and others.
Even where there is no formal treaty, unilateral relief may be available under UK tax law.
Executors must:
- Accurately report all overseas assets to HMRC
- Determine whether any tax is due in the foreign country
- Seek professional tax advice to avoid unnecessary duplication
How to Manage Overseas Assets in Practice
Here is a general overview of how probate for overseas assets typically unfolds:
Step 1: Establish Domicile and Asset Location
Begin by determining the deceased’s domicile and identifying all foreign assets. This sets the framework for tax and legal considerations.
Step 2: Apply for UK Grant of Probate
Apply for probate in England and Wales to deal with UK assets and possibly obtain supporting documentation to use abroad.
Step 3: Reseal or Apply for Local Grant
Depending on the jurisdiction, either reseal the UK Grant of Probate or initiate local probate proceedings. This may require working with legal professionals in the relevant country.
Step 4: Settle Liabilities and Taxes
Ensure that all taxes, including inheritance tax and any foreign death duties, are calculated and paid. Consider applying for double tax relief if applicable.
Step 5: Transfer or Dispose of Foreign Assets
Once probate is granted, the executor can arrange for the sale or transfer of overseas property, bank accounts, shares, or other assets. This may involve:
- Selling property through a local estate agent
- Closing or transferring funds from a foreign bank
- Changing the title of shares or business interests
Step 6: Distribute the Estate
After all debts and taxes are settled, the estate can be distributed to the beneficiaries in accordance with the Will or intestacy laws.
Common Challenges and How to Overcome Them
Language Barriers and Bureaucracy
Legal documents, procedures, and forms may be in a foreign language and subject to local bureaucratic delays. Hiring local legal professionals with expertise in cross-border probate can streamline the process.
Missing or Conflicting Wills
Multiple Wills — for example, one in England and another abroad — can create confusion and disputes. Ideally, Wills should be drafted with advice from international estate planning solicitors to avoid unintended revocations or conflicts.
Delays in Foreign Probate Courts
Probate procedures in other countries may be slower than in the UK. Planning for delays and keeping beneficiaries informed can help manage expectations.
Conclusion
Dealing with overseas assets during the probate process requires careful planning, coordination, and specialist legal knowledge. From understanding foreign legal systems and tax rules to translating and legalising documents, the process can be daunting for executors and beneficiaries alike.
If you are facing a probate matter involving overseas assets, contact Blackstone Solicitors for expert legal support throughout England and Wales.
To read more about our services, please visit:
https://blackstonesolicitorsltd.co.uk/services-for-you/probate/
How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of probate. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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