The process for obtaining an English grant of representation will depend upon a number of factors, including whether or not a grant of representation has been issued by a court local to the deceased and whether or not that grant can be formally recognised in the UK. This process of recognition is known as 'resealing'.
Which foreign grants of representation can be recognised in England and Wales?
If a grant has been issued in a jurisdiction to which the Colonial Probate Act 1892 (CPA 1892) applies then the CPA 1892 allows the documents issued in that jurisdiction – which are equivalent to a grant – to be resealed by the court in England and Wales. The jurisdictions to which the CPA 1892 generally applies are predominantly Commonwealth or former Commonwealth countries.
Applications to reseal a grant may be made by the person to whom the original grant was issued (i.e., the executor or administrator of the estate) or to someone acting on that person’s behalf, such as an attorney. Once resealed, the documents can be used in the same way as an English grant.
What if the grant cannot be resealed?
If it is not possible to reseal a foreign grant you should consider whether the deceased left a will (or similar document) for which an English grant could be obtained.
Broadly speaking, where the deceased died domiciled outside England and Wales an English grant may be issued to any of the following persons:
- The person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled.
As with an application to reseal a grant, the applicant can either be the person who is entrusted with the administration of the deceased’s estate in their home country or it can be that person's attorney.
- Where there is no person so entrusted, to the person or persons beneficially entitled to the estate by the law of the place where the deceased died domiciled.
Applications under this heading may originate, for example, from jurisdictions that are governed by Sharia Law. We have particular expertise in working with Middle Eastern clients and we have regularly assisted in obtaining English Grants in estates where the deceased's domicile was in the Middle East and their estate is governed by Sharia Law.
What is the procedure?
The procedure for applying for a grant of representation can vary greatly depending on the type of testamentary document that governs the administration of the deceased’s estate (if such a document exists) and the laws of the country in which the deceased was domiciled. In certain circumstances an affidavit of foreign law or notarial statement may be required in order to confirm that the will or similar testamentary document that is being relied on was made in conformity with the laws of the place where the deceased was domiciled. Also, if the document is not in English, an authenticated translation by a qualified translator must be obtained.
Will inheritance tax be due in the UK?
For individuals who are neither domiciled nor deemed domiciled in the UK, assets outside of the UK are excluded from charge to UK inheritance tax. Assets held in the UK are however subject to the UK inheritance tax legislation. Broadly, if the value of a deceased's assets in the UK exceeds the inheritance tax allowance for individuals (currently £325,000) then the value of the assets in excess of the allowance will be subject to UK inheritance tax at a rate of 40%.
In each case it will be necessary to submit an inheritance tax account to HM Revenue & Customs, even where no tax is payable. There are different types of account that must be submitted depending on a number of factors. Our team can advise you about which is the correct account to submit. We can also assist you with the completion of the accounts and we can advise you on the time limit applicable to both the submission of the accounts and the payment of inheritance tax, where appropriate.
How we can help
The team has a depth of experience and knowledge in dealing with estates, particularly those where a deceased individual died overseas owning assets in the UK. We can work closely with the representatives of an estate to guide them through the process of dealing with the UK process, and we are used to working closely with lawyers and other professionals in the originating jurisdictions. If there are no local lawyers appointed then through our international law networks we can recommend local lawyers who can assist.