For many decades, our firm has assisted personal representatives based in Australia or New Zealand to administer foreign assets.
How can our international solicitors assist you?
If you are an executor or administrator of an estate based in Australia or New Zealand, you may be faced with the challenge of administering a foreign asset, which requires a foreign court authority, certificate of succession or notarial declaration. The following are examples of cases that we regularly assist with:
- Estates where the deceased was born in the UK, but later emigrated to Australia or New Zealand – leaving assets in the UK. If the asset is located in England or Wales, we can assist with resealing the Australian or New Zealand grant of representation;
- Estates where the deceased was born in Australia or New Zealand and acquired assets in the UK either through work or as an investment;
- We also regularly assist executors and administrators based in the UK to administer assets located in Australia or New Zealand.
Handling a wide variety of these types of cases has enabled our firm to develop a strong network of contacts throughout both Australia and New Zealand.
Can our international solicitors assist with assets located outside of the UK?
Outside of England and Wales, an asset may be located in the Republic of Ireland, Jersey, Guernsey or the Isle of Man. All of these jurisdictions are independent of the UK and we are here to help guide you through the separate processes that need to be followed to administer assets located in these islands.
Beyond the British Isles, we specialise in administering assets located in the USA and Canada. We are also enrolled as a provider of medallion signature guarantees, which may be required to administer the assets located in the USA or Canada.
Depending on the type of asset that requires administering, we can also assist in France, Spain, Portugal, Belgium, the Netherlands, Germany, Switzerland and Luxembourg.
Can Australian Probate be resealed in the United Kingdom?
Australia is one of the countries to be recognised under the English Colonial Probate Act, meaning grants of representation from a State in Australia can be resealed through a probate registry in England and Wales for use in the United Kingdom.
It is important to note that the United Kingdom itself is made up of a number of different legal jurisdictions. You should therefore never assume that a bank account registered in Scotland can be released under a reseal obtained through a registry based in England and Wales, as a Scottish Confirmation may be required. Similarly, for Northern Ireland, a local grant may be required.
What is the process to obtain a reseal of an Australian Grant?
It will first be necessary to confirm the assets held in the United Kingdom and clarify whether a reseal is required.
Once the assets have been confirmed, the estate will need to file a return with the UK tax authority, HMRC, to settle any inheritance tax due. Even if there are no taxes due, a return must be submitted before the reseal can be applied for.
A letter of authority or power of attorney will be required from the executor or administrator. In addition, the Australian grant and Will (if applicable) will need to be sealed by the court that issued the grant. Once these documents are prepared and once the tax return has been stamped by HMRC, it is possible to submit the application for the reseal through the English probate registries. For more information please see our guidance on resealing.
How does administering an estate in the UK differ to that in Australia?
Generally, the process is quite similar. As described above, there is the added stage in the UK of clearing the inheritance tax position, but the applications to the registry are fairly similar.
One big difference is that there is less transparency with share registrars. Whereas in Australia it can be possible to check the position on a shareholding online with a fair amount of ease, the same is not possible in the United Kingdom unless you know the deceased shareholder’s log on details. We also find that reissuing dividends in Australia to be a quicker process than that enjoyed in the UK.
Will an Australian estate have to pay inheritance tax in the UK?
Unlike Australia, UK estates are subject to assessment for UK inheritance tax. At present, the individual inheritance tax ‘nil rate band’ is £325,000.00. If an Australian resident dies leaving UK assets worth in excess of this threshold, the estate may be subject to inheritance tax.
Even if no tax is due, an inheritance tax return has to be filed as part of the reseal or grant application process.
There are many exemptions and reliefs which can be applied for in relation to inheritance tax, for example, a spouse exemption or charity exemption. In addition, certain assets may be “excluded property”, which may mean that they are not subject to inheritance tax.
It is therefore important to make sure that the estate is applying for any exemption or relief available in relation to inheritance tax when it files the return with HMRC.
Planning for the future
We act for many clients from Australia or New Zealand who have invested on an international basis and we frequently prepare offshore Wills (also known as international Wills) to cover their foreign assets.
Unlike Australia and New Zealand, the UK still has inheritance tax. So if you or your client holds assets in the UK, we are here to calculate if a UK inheritance tax exposure exists and, if so, how it can be mitigated.
Frequently Asked Questions
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.
Not only is the United Kingdom made up of a number of different jurisdictions, but the wider region of the British Isles contains even more.
It is therefore extremely important to confirm what grant of probate is required for any assets registered in Jersey, Guernsey or the Isle of Man. The requirements and processes for obtaining a grant in any of these different jurisdictions are quite separate to those used in England and Wales. Our firm can assist with submitting applications in all of these jurisdictions.
If you have been entrusted to administer an estate by way of an election issued in Australia or New Zealand, our international probate solicitors can assist with the unique application formalities that are required when using the election document to apply for either a reseal or a full grant application in England.
There is usually no requirement for an affidavit of law to accompany an application for a reseal.
However, in some estates, depending on the assets involved, it may be preferable to obtain a full grant of probate for use in the United Kingdom and for this, an affidavit of Australian law may be required.
If you are using Lester Aldridge to assist with the grant application, we will draft the affidavit as part of the process and can arrange for an appropriate lawyer to execute this if necessary.
There are many asset companies which now hold offices located worldwide. It may, therefore, seem that you should be able to contact the one closest to you to attend to any assets held internationally by the same company. For example, you may have found some shares registered through Computershare in the UK but be dealing with Computershare in Australia also.
Unfortunately, although sharing the same name, you will find that most of these companies do not deal with their international counterparts and are in fact completely unaware of the processes involved to try and repatriate assets.
Sometimes, trying to deal with international assets through your local branch can, in fact, cause delays and further confusion. It is therefore always recommended that you deal directly with the branch where the asset is registered.