A Grant of Probate does not automatically give you authority over property, bank accounts, or investments located outside England and Wales. To deal with overseas assets, you must verify whether the local country will accept the grant or if they demand a separate, local legal process.
Running a person’s estate means taking on significant administrative responsibilities. But the process can become more complex if you happen to discover that they owned an apartment in Spain, an offshore bank account in Jersey, or company shares in the United States.
What was a standard legal task is now significantly more complex. As an executor, you may find yourself facing unfamiliar foreign court systems, heavy language barriers, and complex tax obligations from overseas authorities.
What Happens When an Estate Includes Foreign Assets?
You cannot simply send a Grant of Probate to a foreign institution and expect them to release funds or transfer ownership. Every single nation enforces its own distinct legal framework regarding what happens to land, residential homes, and savings balances sitting within its territory when an owner passes away.
From a strict legal standpoint, your first job is to map out the exact geographical location of each item. In legal terms, this specific location is called the situs of the asset. This means you may need to undertake separate legal procedures simultaneously.
Where property is involved, it is also important to establish the beneficial ownership of the property before the estate is administered.
Key Challenges of Administering an International Estate
1. The Domicile Dilemma
Before you can even begin calculating inheritance tax or filing paperwork for a UK grant, you have to determine where the deceased person was domiciled. Domicile is a highly technical legal concept that behaves completely differently from everyday residency. For example, a person can live in France for twenty years but still be classed as legally domiciled in England on the date of death.
This status controls how global wealth is taxed:
- UK-domiciled: HM Revenue & Customs (HMRC) levies Inheritance Tax (IHT) against the deceased’s entire global estate.
- Non-UK-domiciled: HMRC usually restricts its tax claims strictly to assets physically situated in the UK.
2. Conflicting Succession Laws
The legal system of England and Wales is built on the principle of testamentary freedom. This means you are free to leave assets to beneficiaries of your choosing. However, many nations across mainland Europe follow an entirely different legal system called ‘forced heirship’.
Forced heirship rules mandate that a strict, non-negotiable percentage of a person’s estate must automatically pass to their biological children or surviving spouse. This may override any alternative distribution instructions written into a will made under the law of England and Wales.
While rules like the EU Succession Regulation (wildly known as Brussels IV) do allow UK nationals to state that they want the law of their own nationality to govern their global property, using this option requires careful specialist drafting.
How to Obtain Authority to Deal with Overseas Assets
The practical steps needed to release foreign assets depend entirely on the specific country where those items are physically located. Most countries follow one of three main legal approaches:
Commonwealth Countries and the Colonial Probates Act 1892
If the overseas assets happen to sit within a country covered by the Colonial Probates Act 1892 (such as South Africa, Australia, New Zealand, or certain nations in the Caribbean), the process is usually quite simple.
The local probate registries in those regions possess the power to reseal a Grant of Probate. This means the local court places their own official stamp directly onto your existing UK document. This gives it legal validity in that country, saving you from having to launch a completely separate probate application from scratch.
Civil Law Jurisdictions (e.g., Europe and South America)
The vast majority of mainland European nations do not recognise the legal concept of an ‘executor’ or a ‘trust’ in the way we do under English law. Instead, ownership of the property frequently transfers straight to the named heirs once the person dies (rather than through the process used for transferring property ownership between family members).
To handle assets in these regions, executors usually have to grant a formal power of attorney to a lawyer based in that country. This local specialist will take your English court documents, arrange fully certified translations, and obtain an apostille (an international certificate of legalisation) to satisfy foreign institutions.
Separate Foreign Wills
If the deceased person took steps to structure their estate properly during their lifetime, they might have drafted a separate, independent will within each country where they owned property, provided they had put the right wills in place. When separate foreign wills exist, you must start a local probate process in that specific country alongside your UK administration.
Double Taxation & Cross-Border Penalties
One potential risk for executors is double taxation. This happens when HMRC and a foreign tax agency both demand a percentage of the exact same asset.
To stop estates from being entirely wiped out by competing tax collectors, the UK has entered into official double taxation rreaties with a wide range of nations. Where these specific agreements apply, you can generally claim a credit back on your UK tax return for the funds already paid out abroad. However, these rules are strict, and missing tight foreign deadlines can leave you personally liable for significant financial penalties.
A Checklist for Executors Managing Foreign Assets
If you have recently stepped into an executor role and realised that the estate contains overseas investments, you will need to:
- Locate physical property deeds, international bank statements, and foreign share certificates.
- Declare every global asset on your IHT400 tax return, regardless of whether it faces tax abroad.
- Double-check every record to ensure the deceased did not execute a local will abroad that may inadvertently revoke or conflict with their will made under the law of England and Wales. This will, for example, help to reduce the risk of possible property ownership disputes later on.
- Secure the market value of the asset on the precise date of death, converted into pounds sterling (GBP) using the official historic exchange rates.
To do this, you will likely need a dedicated specialist who speaks the native language and understands local laws.
Get Professional Help with International Probate
If you are currently dealing with foreign property and international tax issues, our experienced probate and estates team at Heald Nickinson is here to help.
Reach out to our office today by calling us on 01276 680000 or send us a message to discuss your situation.