The world has become a smaller place as people become more mobile. As a result, it is not unusual for there to be a foreign aspect to an individual’s will planning. This may be a UK resident and domiciled individual who owns a holiday property abroad. It may be an individual who is domiciled outside of the UK with overseas property but living in the UK for a (sometimes considerable) period of time.
It is common practice to have a single English form. Will dealing with worldwide property. Often that will be acceptable provided the position on death has been carefully considered. Where the asset is a property abroad, the appointed executor may need authority that complies with the relevant jurisdiction in order to deal with it. This can involve a translation of the Will and grant of probate. Usually the documents will need to be notarisedand apostilled in England before the foreign authorities will accept the executor’s instructions.
Probate may be more straightforward if the English form will applies to worldwide assets except the relevant jurisdiction and there is a separate Will dealing with assets in that jurisdiction which can be proved independently.
An area of difficulty arises if the individual is domiciled in a country that recognises rights of heirs and which limits testamentary freedom. Many European countries provide for a share of an individual’s assets to pass to the surviving spouse and children leaving the remaining share to be governed by the individual’s will. This is where complicated conflicts of law issues come in to play. It may be possible to elect that the law of nationality or residence applies to the succession of an overseas property, which can avoid many of the difficulties.
Such succession laws can also affect the amount of tax payable. If an individual living in the UK claims to be domiciled elsewhere then HMRC would expect that jurisdiction’s succession rules to apply to the transfer of assets on death. If the non-domiciled individual has left his UK assets to his surviving spouse so that there isno UK inheritance tax on the first death, HMRC may enquire whether that is permissible under the succession laws of that individual’s domicile. If a proportion should have been left to the individual’s children and that proportionexceeds the available nil rate band, HMRC may seek to apply UK tax.
It may be possible to anticipate some of these issues through having a separate Will in the relevant jurisdiction, which can usually be in an English form. This will, in practice, mean that the procedure on death will be much more straightforward and any issues such as rights of heirs can be addressed. In many cases, the problems created by having a single will are not insurmountable but careful thought can ensure that any difficulties are minimised and unexpected surprises are avoided.
For legal advice on wills and probate matters please contact Leon Kaye Solicitors tel. 020 7228 2020 or email firstname.lastname@example.org