Cross-border probate can seem like a very complicated area of law, particularly for families in the midst of grief and all the accompanying uncertainties that are an inherent part of the administration of a deceased person’s estate.

However, to avoid the possibility of such uncertainty and, potentially, probate disputes, those with cross-border estates should make a comprehensive Will or Wills covering what should to all of their assets across all jurisdictions.

There are two options to achieve this:

• Testators who live in England or Wales and who have assets in other territories, can make a single Will — i.e. they can instruct an English or Welsh lawyer to make a Will covering both their domestic and their worldwide assets, including property, or
• Testators can limit their English or Welsh Will to deal with domestic assets only and make further, separate, Wills in the country or countries in which their overseas assets are situated.

The route that a person takes should be determined by their financial and legal positions and should be informed by professional legal advisors. For example, in some cases although a foreign Will may not be required, it may be advisable to make one in order to ensure the efficient and faithful distribution of overseas assets.

Is an overseas Will necessary?

There is no one-size-fits-all answer to this question as so much depends on the individual Will writer’s circumstances and intentions, as well as the laws and inheritance tax rules of the jurisdiction in which they are operating or domiciled.

Another crucial factor is the type of jurisdiction in which the testator’s assets are held. For example, common law jurisdictions such as England and Wales are relatively straightforward and easy to understand for testators, their families and UK probate dispute lawyers. However, civil law jurisdictions such as in Europe may present inheritance tax problems, particularly if they involve trusts.

Sharia law jurisdictions such as Saudi Arabia, Kuwait, Bahrain, Yemen, and the United Arab Emirates can present significant challenges when it comes to cross-border probate administration or disputes as they may have rigid rules – for example, those jurisdictions that involve forced heirship may dictate who property and assets can be transferred to, invalidating any provision that has been made in an English or Welsh Will.

It is also important to note that having distinct Wills for assets in distinct jurisdictions can help to speed along the probate process by ensuring that probate is dealt with separately in each jurisdiction.

EU Succession Regulation (Brussels IV)

This regulation is designed to provide clarity regarding cross-border probate issues within the EU.

Under Article 22 of the regulation, a testator may elect their national law over that of their country of residence. As such Brussels IV can be used to resolve the succession law conflicts that may otherwise be experienced by estates in countries such as Italy, France or Spain where forced heirship systems still apply.

As such, it is essential that testators are clear in this regard and use Brussels IV to nominate their preferred jurisdiction for succession law. For more about Brussels IV click here.

Despite the fact that the UK opted out of Brussels IV the regulation still affected anyone in England and Wales who had property and/or assets in EU Member States who were bound by it. Brexit means that the UK will be considered a Third State in all dealings with EU Member States and this may cause probate conflicts.

Advice critical to avoiding a cross-border probate dispute

Any UK-interested individual with assets in another country should seek legal advice regarding succession planning. In reality, there is no other way for a person to ensure that their wishes are followed after their passing and as we transition out of the EU, now is a crucial time to revisit your estate planning documents to ensure they still reflect your situation.