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A Guide to Probate When the Deceased Was Domiciled Abroad

June 15, 2019 By Richard Farrell

Over 5 million people may have left the UK to enjoy warmer weather. Therefore it’s become increasingly likely for them to have assets in one country and live in another,

Cases where two (or more) countries are involved can become complex, especially where the deceased failed to plan for this, and / or disputes arise between family members / dependents.

Addressing the Question of the Deceased’s Domicile First

Strictly speaking, a domicile is the country a person treats as their permanent home. English law deems this to be the father’s domicile at the time of their birth. Since each of us may only have one domicile at a time, it’s important to establish a timeline if a domicile of origin changes.

Matters become more complex where a deceased did not have a physical home. However, in this case the law will assume a domicile for them on the basis of their actions and perceived intentions before they died.

The Gazette cites a case where a deceased person was born in England, later moved to Belgium but worked in France. However he spent a few weeks every year in a home he owned in England. The court decided his English will was valid because he had retained his domicile of origin.

Next, the Validity of Wills and the Rules of Intestacy

An executor’s next task is either proving the validity of a will, or applying the rules of intestacy if there is none. According to The Gazette, a will made in England may hold good even if the deceased was living elsewhere, provided they maintained “a suitably close connection to the country”. If this cannot be proven, then the law of the country where they were living applies.

The European Union Succession Regulation

Britain has not ratified this legislation yet, and indeed it may never do so. Nonetheless our courts may still use it as input. The regulation first tests whether the will states which national law applies. If it does not, or there is no will then it applies the ‘habitual residence’ rule.

Obtaining a Grant of Probate for Someone Who Died Abroad

The situation can become even more complex if a person died abroad leaving property or assets in Wales or England. This is because UK banks and other financial institutions require an English grant of probate before they execute an administrator’s instructions and release funds.

Challenging a Will or the Distribution of Assets

Under English Law a person may leave their assets to whoever they wish. However, the Inheritance (Provision for Family and Dependants) Act 1975 allows others to challenge it after their death if:

  • The will excluded them
  • AND / OR They have not inherited as much as they need
  • AND / OR They have not inherited at all

Therefore, by way of an example a person whom the deceased maintained before they died may claim part of the estate to compensate them. However, the Act prohibits a person domiciled abroad from doing so. They then have to depend on the laws of their domicile which may not be compatible with an English will.

Challenging a Will in Terms of Testamentary Capacity

A legal challenge may be instituted in England and Wales on the basis the deceased:

  • Did not have testamentary capacity
  • AND / OR Were subject to undue influence
  • AND / OR Did not approve or understand the will

However the situation may be different in a foreign country, leading to deep resentment and disputes in families and relationships. Therefore a testator and their will-writer should carefully investigate all these matters, before they put pen to paper and sign.

Related

Filed Under: Probate Valuation Tagged With: overseas assets and probate, probate valuation guidance, rules of intestacy, The European Union Succession Regulation, vlidity of will

Our House Clearance Services

We provide a full house clearance and property management solution:

  • We clear hoarded houses, regardless how big or how cluttered
  • We clear all types and sizes of property, irrespective of location, or access is restricted or where parking is difficult or not available.
  • We can help avoid water damage by draining the central heating system.
  • We can secure the property and change the locks.
  • We can reinstate the gardens and maintain them whilst the property is empty.
  • We can provide 24 hour security to eliminate the risk of squatting or unlawful occupation.

As well normal house clearances we specialise in clutter clearance and we can clear a hoarded house which may contain years of accumulated possessions, or which have abnormal amounts of general household items, sometimes as a result of compulsive hoarding syndrome.

Equally we can help to clear a property where the occupants were previously unwell and unable to care for themselves or their property which sometimes results in insanitary, dangerous or just plain unpleasant conditions.

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Jenny Schon
Dec 3, 2021
 by Jenny Schon on Avery Associates
Well done

This truly is a 'one stop shop' for all things relating to Probate valuations and clearance. Jeffrey is a 'facilitator' and full marks to him for finding... Read More

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Oct 26, 2021
 by Kevin Anderson on Avery Associates
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Our aunt was a recluse and hoarder. She died leaving two properties in London that were dilapidated and completely hoarded. Unfortunately, because everything... Read More

It was a pleasure to assist Kevin

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Aug 26, 2021
 by T. Hackett on Avery Associates
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