Resealing Foreign Grants of Probate
Resealing Foreign Grants of Probate
Many current and former Commonwealth countries have similar common law legal systems. However, if an individual passes away domiciled in one of those countries, leaving assets registered in England, it is regularly the case that the grant of probate issued by the local court will not be recognised by the asset holder.
Resealing is a fast and efficient way to obtain recognition of a local probate document by the English court, which will then enable the executor or their attorney to gain access to the assets registered in England.
For example, if an individual, domiciled in South Africa, passes away leaving a bank account and a house registered in England, the South African letters of executorship may not be recognised by the financial institution and will not be recognised by the English Land Registry. It follows that resealing would be an efficient way for the South African executor to obtain English court authority to administer the bank account and to deal with the English Land Registry.
When can I reseal?
The English court is permitted to reseal probate documents issued by the courts of specified current and former Commonwealth countries and territories, a list of which is contained in a schedule at the end of this guidance note.
Who can apply to reseal?
Broadly speaking, a probate document issued by a local court may be resealed if the person entrusted is one of the following:
– A person entrusted with the administration by the court of the place of domicile;
– A person beneficially entitled to the estate by the law of the place of domicile;
– The executor named in the Will.
What documents are required to reseal?
- The local probate document and the Will
The original probate document, a court sealed and certified copy, or an exemplification of the probate document can be submitted.
As the original Will (and any codicil) is normally retained by the first court in which it was proved, a court sealed and certified copy of the Will (from the local court of domicile) is required, plus two photocopies.
If the deceased passed away without a Will, only the probate document will be required.
- Letter of Authority or Power of Attorney
If you would like our firm to apply for the reseal on your behalf, we will prepare a letter of authority. Alternatively, where we are also instructed to continue and administer the assets in England, we will prepare a power of attorney.
- Inheritance Tax Return or Account
To comply with the requirements of the UK tax authority, H M Revenue and Customs, the English court requires an inheritance tax return or account to be submitted.
- Court Fee
Where the value of the net estate exceeds £5,000, the current fee of £155 is payable for resealing. No fee is payable where the net UK estate is less than £5,000. Official sealed copies are currently 50p each.
At Lester Aldridge, we have a strong relationship with many professional executors throughout the world, which has resulted in our firm acquiring decades of experience in conducting reseal applications and cross-border estate administrations.
Although resealing can at first appear to be a straightforward exercise, the following reasons provide a few illustrations as to why our professional assistance is recommended:
A. If a foreign executor attempts to submit an English inheritance tax return or account, which is then completed incorrectly or the incorrect form is submitted, they may be committing a criminal offence. It would also be strongly recommend that a professional is instructed if the estate is taxable in the UK, so that all exemptions and reliefs (for example, double taxation relief) are sought. If you are not fluent in the English inheritance tax reporting formalities, we can lift this burden from your shoulders.
B. If a foreign executor obtains a reseal in England, they may then face difficulty when dealing with certain assets, which are registered in England. For example, shares or transfers of land. If one of our professionals is instructed to deal with both the reseal application and the administration of the English assets, this can expedite the process and have economic advantages. This can also serve to protect a foreign executor from maladministration in a jurisdiction in which they may not be familiar.
C. Certain local courts issue specific types of court order, which may at first appear to be unsuitable for resealing. However, certain Elections to administer estates sealed by the courts in Australia and New Zealand may be accepted (but not all!), as may Appointments of Estate Trustees issued by the courts in Canada. We will be able to advise on which court orders can be accepted or seek permission from the court on your behalf.
D. If the probate document and Will are in a foreign language (a common example is Afrikaans), then appropriate English translations will be required. The court has quite specific requirements for the format of the translations and who can provide them. Accordingly, we will be able to guide you on the requirements to satisfy the court.
E. Other circumstances may first require the permission of the English court to proceed. For example, if the local probate document is limited in any way or issued only for a temporary duration.
F.Although resealing is commonly associated with the United Kingdom or the British Isles, it is worth noting that resealing is only possible in England and Wales. It is not possible to reseal in Scotland, Northern Ireland, Republic of Ireland, Jersey, Guernsey or the Isle of Man. So it is important to consider in which jurisdiction the asset that you are attempting to administer is situated. Our firm will also be able to assist with obtaining a court authority in any of these jurisdictions.
If you are in a position where you feel that resealing may be appropriate or you require advice on your alternative options, please contact our International Private Client team and we would be delighted to assist and provide a quote for our services.
List of current and former Commonwealth countries whose probate documents can be resealed and who may have reciprocal arrangements:
Australian Capital Territory
British Antarctic Territory
Cocos (Keeling) Islands
*Note: For Cyprus, only grants issued by the recognised government of Cyprus can be resealed; grants issued by the courts of the Turkish Republic of Northern Cyprus cannot be resealed.
New South Wales
Northern Territory of Australia
North-West Territories of Canada
Papa New Guinea
Prince Edward Islands
St Christopher (Kitts)
Nevis and Anguilla
Trinidad and Tobago
Turks and Caicos Islands
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