Probate for Non UK Residents
14 November 2018
If you are trying to administer the Estate of a deceased British person who lived outside of the UK, how do you go about it?
This isn't an uncommon situation. Many Brits move abroad, particularly when they reach retirement age, and so it follows that many of them also die abroad. If their Estate must then be administered according to the laws of Probate, it becomes confusing as to which country this should be done in.
For example, Alan moved to Spain where he lived for 15 years before his death. Before moving, he wrote a Will naming his son James as his Executor. Alan bought a house in Spain, but still owned a few assets in England. James needs to go through the Probate process, but isn't sure what country this should be done in – England or Spain?
The answer is that it largely comes down to the matter of 'domicile'. Domicile is the country which is considered to be your permanent home. This can be quite obvious for some people, but for others it can be a grey area. Your domicile may be different from the country you were born in and it won't necessarily be the same as the country you live in – this will be your residence.
Ultimately, domicile refers to the country that the person in question considers to be their permanent home or the country that they live in and have a substantial connection with. A person's domicile will likely be somewhere that they intend to return to (or intended to return to if they are deceased) even if they have been living somewhere else.
Before starting the Probate process, the Personal Representative must determine what the deceased's country of domicile was. Everyone is assigned a domicile when they are born, which is usually the same as their father's domicile. Most people keep the same domicile throughout their lives even if they spend time living elsewhere, but in some cases someone's domicile may change. This is likely to be the case if someone permanently emigrates, for example.
If someone acquires a new domicile this will normally be referred to as their 'domicile of choice'.
Probate for People Domiciled in the UK
If the deceased person is deemed to be domiciled in England and Wales, even though he/she was living abroad, then the Personal Representatives can apply for Probate here.
Please note that the different countries that make up the UK actually have their own Probate laws, so you need to find out if you are dealing with an Estate in Scotland, Northern Ireland, or England and Wales (which have the same Probate and Estate administration process).
If the deceased person had assets abroad, then a local expert must be instructed to deal with these. Co-op Probate Solicitors can help you arrange this, just as we helped one client administer the Estate of his late wife who had assets in the UK and Spain.
Probate for People Not Domiciled in the UK
If the deceased person is deemed to be domiciled outside of the UK, then the Probate process will normally have to be dealt with in their country of domicile. But if he/she still owned assets in the UK, then Probate might also be needed in the UK in order to release these assets.
The way in which this is done depends on the deceased's country of domicile. If it is a country in the European Union, or a country that formerly made up the Commonwealth, it can be less complex.
If the Probate process is carried out abroad, a Grant of Representation (or its equivalent) may be issued in the deceased's country of domicile. In these situations, the document sometimes has to be 'resealed' in England and Wales, which means it will be recognised here. A further Grant will be issued in respect of the assets held in England and Wales, allowing them to be administered and distributed to the Beneficiaries.
The process may be more complicated depending on the country in which the deceased was domiciled, and the Inheritance Tax situation can become very complex where there is tax to pay both in the country of domicile and in the UK.
Help with Probate
If you are trying to deal with the Estate of someone who was not living in the UK when they died, it can bring up a number of questions and complexities. You may therefore want to ask a Probate Specialist to help you.
Probate can be a daunting prospect at any time, but it will be all the more so if you have to deal with assets that are held in a country where you do not live, speak the language or understand the local laws.