International Probate

Expert International Probate Lawyers

Increasingly individuals have assets in more than one country which can create complex cross border succession and taxation issues on death. Osbornes Law are specialist international probate lawyers and along with our network of international lawyers can help executors handle international assets.

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  • “Incredibly dedicated and committed to her clients. She can do both the non-contentious and contentious sides very, very well.”

Specialist advice in dealing with International Assets

Our team of specialist probate lawyers at Osbornes Law have significant experience in dealing with cross border estates in countries including the UK and Australia, Europe (Germany, Spain, France and Italy), India, Hong Kong, Singapore, The United States and Brazil.

Where a person dies owning assets in two or more countries, it is frequently necessary for probate or the equivalent to be obtained in both or all countries where the assets are situated. For example, if a person dies domiciled in Germany holding assets in England and Germany, it will be necessary to go through two separate procedures to release the assets. In Germany, the beneficiaries of the German estate will need to obtain a Certificate of Inheritance known as an Erbschein to enable the German estate to be released. A separate Grant of Probate, or Letters of Administration if there is no Will, will need to be obtained in England to secure the release or transfer of the English assets.

Reseals

A slightly different process should be followed when a person dies with assets, say, in Australia and England. If a Grant of Representation has been obtained in the relevant Australian state, the Colonial Probate Acts permit the resealing of that Grant in England and Wales. Countries and territories covered by these Acts include New Zealand, Canada, Australia, Hong Kong,  Singapore, South Africa, St, Lucia, Jamaica and the Bahamas.

To obtain a resealed Grant, the following documents are required:-

  1. Original Colonial Grant or, more likely, a Court sealed and certified copy, or an Exemplification of the Grant.
  2. A Court sealed and certified copy of the Will and two photocopies.
  3. A written request from the personal representatives named in the Grant asking for the Grant to be resealed.
  4. The appropriate HMRC form duly completed. The appropriate form depends on the value of the estate and whether the deceased had ever lived in England and Wales.
  5. The appropriate fee payable to HM Courts and Tribunal Service.

Succession

Conflicting national laws often apply when a person dies leaving assets in more than one country. Different countries recognise different concepts which influence succession to the deceased’s assets. For example, England recognises the concept of domicile, France, Belgium and Denmark apply the concept of habitual residence and other countries, such as Spain, Portugal, Germany, Austria, the Netherlands and Italy, apply the concept of nationality. The interconnection between these concepts and their application to succession is complex and clients need to ensure that the advisor they appoint has specialist knowledge of the succession rules of each country and how they interact with each other.

Once the client’s domicile, habitual residence or nationality have been ascertained and the situs, i.e. location of their assets is known, then further investigations are necessary to determine whether the relevant countries have one law governing succession to moveable assets and another governing succession to immovables, i.e. a house or flat.

Some countries, such as Spain and Germany, do not recognise the concept of personal representatives or estate administration. When someone dies the heirs usually appear before a Notary to accept their inheritance direct, rather than it being dealt with by Executors or the administrators of an estate, which is what happens in England and Wales.

The concept of forced heirship applies in some countries, in particular France and Germany, where, irrespective of the terms of any Will, certain specified parts of an estate pass to particular beneficiaries, usually the surviving spouse and children.

All of these concepts need to be considered and appropriately applied in relation to international estates, insofar as appropriate. All this is complicated and matters of private international law and conflicts of law may be relevant in such international situations and need to be clarified and fully understood.

According to the European Commission, 450,000 cross border successions occur in the EU every year, representing an estimated value in excess of €120 billion.

Brussels IV

In an attempt to simplify cross border successions, new European Union Rules adopted on 4 July 2012 intended to make it easier for European citizens to deal with the legalities of an international Will or succession matter. There is to be a transitional period and most of the new rules are to be applicable to these successions from 17 August 2015.

These new rules of Regulation (EU) No. 650/2012 are designed to ensure that:-

  1. A succession is treated coherently under a single law and by one single authority;
  2. Citizens are able to choose whether the law applicable to their own succession should be habitual residence or nationality;
  3. Parallel proceedings and conflicting legal decisions in more than one country are avoided;
  4. There is mutual recognition of decisions relating to EU succession;
  5. A European Certificate of Succession is to be created to enable a person to prove status and rights as a beneficiary or administrator of an estate.

Notwithstanding this, some issues will continue to be governed by national rules and in any event the United Kingdom is not currently intending to subscribe to the European Council’s new rules which are known as Brussels IV. The idea behind them is to make it easier for European citizens to deal with the legal side of an international Will or succession issue, i.e. where the rules of more than one country are relevant. The intention is to provide a single set of rules for determining both jurisdiction issues and the relevant law applicable to cross-border estates, with the deceased’s habitual place of residence at the date of death as the determining factor, thereby making it simpler to settle international succession issues.

More than one will?

Prudent estate planning means that it is often a good idea for there to be one international Will covering the testator’s assets in the country where most of them are situated, with a separate local Will just dealing with the few assets owned in another country. Great care must be taken to ensure that the later Will does not revoke the earlier Will and that there is no conflict between the two. Again, specialist advice should be taken to ensure the appropriate form of Will in each country is drawn up.

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    • "I wish to thank you for your advice, efficiency and professionalism throughout which has been greatly appreciated."

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    • "I am proud to be a private client of Osbornes Solicitors LLP, a client of many years. I appreciate the swift and efficient work of the Private Client Department Team."

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    • "Jan Atkinson, with her steely, steady, calming presence, instils confidence in the most highly-strung of us clients. With her masterful knowledge of the law, old and new, and its application, Jan can navigate through the most complex of cases to a successful end."

      Legal 500 2021

    • "I find Osbornes’ client-friendly approach welcoming and refreshing"

      Legal 500 2021

    • "A medium-sized London firm dealing with big litigation and doing it extremely well because of a depth of expertise and experience."

      Legal 500 2021

    • My family had the pleasure of Jan Atkinson working with us on the will and probate issues of [my mother's] estate in Camden and Ireland after she passed on last year. Jan and her assistant(s) offered us a fantastic service at a sad time.

      Client Review

    • "Jan Atkinson stands out for her wide-ranging knowledge and experience of estates; whatever problem you throw at her, she has seen it all before and is able to find a creative and sustainable solution. She has exceptional commitment to her clients and explores every avenue to find the best solution for them"

      Legal 500 2021 - Jan Atkinson

    • The team is very caring, experienced and detailed and was clear about the  next steps and offered very helpful advice and suggestions

      Legal 500

    • Jan Atkinson has extensive experience in private client matters, which underpins her excellent skills in the contentious probate area. Plus she is strong on international matters

      Legal 500 2020 - Jan Atkinson

    • A small but formidable team, punching above its weight. Jan Atkinson is a seasoned pro. Approachable but no push-over

      Legal 500 2020 - Jan Atkinson

    • "They are an outstanding firm to work with. They are consistently impressive in their work."

      Chambers UK

    • "Elspeth Neilson is very reliable and practical."

      The Legal 500

    • "The team frequently deals with cross-border estates for high–net-worth individuals."

      The Legal 500

    • "The team were extremely professional in putting my needs first. There was a joined-up approach to catering for the client, and all lawyers involved were briefed and constructive."

      Chambers UK

    • The situation was handled by your extremely competent, efficient hands - I would not hesitate to recommend Osbornes to others.

      Wills, Probate and Disputed Estate Client

    • "Service prompt and effective. I have absolute confidence in Maggie."

      Wills, Probate & Disputed Estates Client

    • I am happy with the service that I got and would recommend you to other potential clients.

      Wills, Probate & Disputed Estates Client

    • I found Osbornes always very helpful and efficient.

      Wills, Probate & Disputed Estates Client

    • We are very pleased with the services of Osbornes. Highly professional and through with close attention to detail.

      Wills, Probate & Disputed Estates Client

    • I would highly recommend Jan Atkinson in any probate matter and Osbornes Solicitors in any other legal matters.

      Wills, Probate & Disputed Estates Client

    • Jan Atkinson is a very proficient lady whom I would highly recommend to anyone involved in probates.

      Wills, Probate & Disputed Estates Client

    • Thanks for all your work and explaining everything so clearly. For any legal matters in the future I would not hesitate in instructing Osbornes.

      Wills, Probate & Disputed Estates Client

    • We have found your service to date as the most informative we have come across.

      Wills, Probate & Disputed Estates Client

    • Osbornes Solicitors always responded promptly to any request for information I had.

      Wills, Probate & Disputed Estates Client

    • “Geoffrey’s affairs were dealt with just the right combination of friendliness and professionalism, which really helped.”

       

      Wills, Probate & Disputed Estates Client

    • Jan Atkinson is confident with a straightforward approach. Her practice covers both contentious and non-contentious matters, including wealth planning and estate administration.

      Chambers UK

    • I would like to thank everyone in my case for the excellent job!

      Wills, Probate & Disputed Estates client

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