August 11, 2020

Volume X, Number 224

August 11, 2020

Subscribe to Latest Legal News and Analysis

August 10, 2020

Subscribe to Latest Legal News and Analysis

Resealing Foreign Grants

A resealed grant enables the personal representatives of the deceased to administer an overseas estate in England and Wales, giving the original grant force and effect similar to what it would benefit from had it originally been issued in England.

The process of resealing a grant of probate or letters of administration in the English courts is likely to be required where a deceased individual was living in a jurisdiction other than England or Wales, but held assets within those countries.

This process is not, however, possible for all jurisdictions, and there are various pitfalls to watch out for, so care needs to be taken when considering how to start the application.

A definitive list of countries to which the option of resealing applies is available in The Colonial Probates Act Application Order 1965. Most of the countries are British Overseas Territories and have, at some stage, had links to the Commonwealth.

The Resealing Process

A district judge or registrar can issue a resealed grant to the following applicants:

  • The person, or up to four persons, entrusted with the administration of the estate by the court with jurisdiction in the place where the deceased died domiciled.
  • The person beneficially entitled to the estate by the law of the place where the deceased died domiciled (the heir) or, if there is more than one, to as many heirs that would benefit under the laws of the jurisdiction where the deceased died domiciled
  • The executor named in a valid will written in any language.

A grant in a foreign language will not be accepted for resealing. A court certified translation will be needed if the will is written in any language other than English or Welsh.

It is also vitally important that all of the relevant documentation is to hand prior to making the application, to ensure the probate courts can be provided with all the evidence required.

Section 2 of the Colonial Probates Act 1892 authorises the resealing of one of the following:

  • The original grant
  • A duplicate of the original grant, sealed with the issuing court’s seal.
  • A copy certified as correct by, or under, the authority of the issuing court.

If there is a will, it should ideally be physically annexed to the copy of the grant. If it is not, the probate registry may require some extra evidence that the two are linked.

Depending on the value of the UK-situated assets, it will also be necessary to file an estate tax return with Her Majesty’s Revenue & Customs (HMRC) prior to making the application, even if only to declare that no tax is payable.

If the UK-situated assets are worth less than £325,000, the estate tax return is relatively simple to complete. If, however, the deceased was born in the United Kingdom, or was ever domiciled there, a longer, more complicated estate return form will need to be completed.

HMRC aims to provide the initial certificate required within two weeks of the date of submission, but the time required for processing the estate return varies, depending on the complexity of the estate.

Once the original documents and confirmation of the tax payable have been collated, an application can be made to the probate registry with the appropriate fee.

All being well, the application should be processed by the probate registry within 2-4 weeks of submission. The personal representatives can then proceed to administer the estate in the United Kingdom.

Grants issued in the “Crown Dependencies”, such as the Channel Islands, will not be recognised in England and Wales and are not eligible for resealing. If the deceased had assets in a Dependency, it will be necessary to apply for a separate grant to deal with the assets in England and Wales.

The process of applying for a separate foreign grant is more complicated, and therefore more costly, than for a resealing. An oath with details of the deceased, their domicile, and the entitlement of the person making the application will need to be sworn. Advice should be sought at the outset to ensure that the oath is drafted to fit the particular circumstances.

© 2020 McDermott Will & EmeryNational Law Review, Volume IX, Number 121

TRENDING LEGAL ANALYSIS


About this Author

Simon Goldring, London, UK, private wealth, tax matters, estate planning, trust, estate, tax lawyer, Africa, United Kingdom, McDermott Will Emery
Partner

Simon Goldring advises clients on a wide range of international private wealth and tax matters. He acts for a variety of clients ranging from high net worth individuals, family offices and entrepreneurs to multi-national corporations both in the UK and internationally including South Africa, Latin America, the Far East and the Middle East.

Simon undertakes all types of private client work including the preparation of wills, powers of attorney, domestic trusts, probate and income and capital tax planning. Internationally, Simon advises on...

44-20-7570-1460
Laura Harper tax lawyer Mcdermott
Associate

Laura Harper focuses her practice on tax planning for domiciled and non-domiciled individuals. She advises clients across a number of jurisdictions, including Africa, Europe and the British Virgin Islands. She also handles all aspects of succession planning, trust creation and administration of high value UK and foreign estates, including landed estates.

Laura advises clients on compliance with the recent Common Reporting Standard for charities, trusts and individuals as well as counselling on opportunities which might arise for start-up companies through Enterprise Investment Schemes.

+44 20 7570 1439