The simple answer is yes (usually), however any estate including international elements will always have a certain level of complexity.
Firstly, you need to determine where the assets of the deceased are. If the deceased has prepared a foreign Will, this will generally be because they held assets in that jurisdiction. If this is still the case at the date of death, but there are also UK assets requiring a grant of probate, then you may need to obtain “probate” in both countries. One of the first questions is whether or not the Will is limited in scope, or is it stated to cover worldwide assets. If the Will is silent on this point, then the construction of the Will would need to be carefully examined to determine if it applies only to the jurisdiction in which it was prepared, or if it disposes of worldwide assets, or at the very least appoints executors to administer the worldwide estate. If the Will is limited to assets in the country in which it was prepared, then the UK estate may pass under the intestacy rules.
Secondly, you need to consider if the Will is limited in the assets it seeks to deal with. Most UK Wills include a residuary clause, which is effectively designed to deal with any other assets that have not been specifically named in the Will. This is however not always the case and some jurisdictions do not have this practice. Even if the Will is limited in the assets being dealt with, it may still validly appoint executors to administer the entire estate. Once again, this will depend on how the Will has been drafted.
In some cases, you will need to obtain probate in the country in which the Will was prepared, in order to deal with assets in that jurisdiction, and then arrange for the Will to be resealed for use in the UK. This is the format through which the UK Courts recognise the authority of the Will and the executors appointed. This can however be a time-consuming process as the executors will need to obtain the foreign grant first, before an application can be made for a UK grant.
For this reason, it is not uncommon for individuals with assets in multiple jurisdictions to prepare Wills in each country. This is generally the advice given, as it allows the separate estates to be administered simultaneously without the need to apply in each country in turn. Care needs to be taken at the time the Wills are being prepared however to ensure that they do not accidentally revoke the Wills prepared in other jurisdictions and we always recommend that each named set of executors is aware of the details of the other executors’ worldwide, as they will inevitably need to work together on aspects of taxation. In these circumstances having Wills limited in scope, and scope of revocation, would be ideal.
If the Will was prepared in a foreign jurisdiction, but no grant is required in that country, or the majority of assets in the estate are in the UK so that it makes sense to administer the UK estate as a priority, then it may be possible to submit the foreign Will to the UK Probate Registry for issue of a Grant of Probate. For this to be the case, you need to show that the Will is valid under UK law. This is possible either by showing that it meets the requirements of s9 Wills Act 1837, or that it was a valid Will in the country in which it was created. This second option requires statements of law to accompany the Will, prepared by a legal professional in the jurisdiction in which the Will was prepared, confirming its validity in that country.
In all cases, you will need to complete a UK inheritance tax return. The allowances available will depend on the deceased’s domicile status at the date of their death. if they were UK domiciled then all worldwide assets would be subject to the UK inheritance tax regime. Questions of domicile can be very complex and so should be something on which you seek professional advice at the earliest opportunity.
Wills which include an international element are complex and often require co-operation between solicitors in the UK and solicitors or notaries in the foreign jurisdiction. The application process is rarely straightforward and the tax position both in the UK and abroad may be complicated. If you have any estate which includes a foreign Will or assets and would like some help then please contact Ashley Minott on email@example.com or by telephone on 01494 893 518.