International Estate Planning, Administration, Wills & Trusts
Our International Estate Planning, Administration, Wills & Trust services are designed to assist UK expatriates in protecting their estates.
We provide estate planning, wills and trusts for individuals and couples to ensure your wishes are lawfully recorded for testamentary purposes, your estate is protected against unnecessary taxation and parties who would seek to mount claims against the estate.
Proper estate planning ensures numerous benefits and incorporates various elements, including:
- Protection from HMRC against tax claims made in the UK;
- Compliance with international property, tax and estate planning laws;
- Protection of vulnerable family members, including provisions for disabled heirs and custody arrangements for minors.
Wills And Probate Matters
In addition to various strategies for the management of assets and property, wills and trusts are often central to effective estate planning.
A will can be among the most complex and difficult documents to write, especially where assets or beneficiaries are located across several jurisdictions. It is important to ensure your will is lawfully executed and appropriate for the jurisdictions where you hold assets.
Expats are at particular risk of double taxation, and challenges on the estates, as they often hold property interests in various countries. International wills may be necessary for those who have assets in more than one country, as a will is only valid in the country in which it was written.
Without a will that includes consideration of international elements, the distribution of your assets could be a costly, complex, and lengthy business. For example, while the law of England and Wales decides on how assets will be passed on according to domicile, other countries may consider the deceased’s nationality or where they held assets in considering how an estate should be distributed. Contradictions between laws can result in court cases, often taken by tax authorities, to determine outcomes, and the costs of that litigation are inevitably borne in large degree by the estate.
Since 1975, efforts have been made to enact a simplification process, but there is little political will to coordinate internationally, and probate rules vary widely by country, and between civil and common law jurisdictions. Different countries also have varying positions on the distribution of moveable assets (valuables or possessions), as well as those considered to be immovable, such as property or land. As a result, will standardisation remains largely an unrealised ideal.
Drafting appropriate wills can help resolve the problem of holding assets in different jurisdictions.
Haskew Law has considerable expertise in international law and cross-border matters, including international taxation, international property and cross-border tax laws, including offshore assets.
Haskew Law is also able to advise on will trusts, care of elderly and vulnerable family members, and foreign probate matters. Our specialist will writers can advise on how to protect assets held offshore – and can act as professional trustees for will trusts.
We have considerable expertise in advising on high-value international wills, where there may be complex tax implications – as well as advising on re-sealed Grants for assets held under the Colonial Probate Acts, in countries including Australia, the Bahamas, Canada, Hong Kong, Jamaica, New Zealand, Singapore, South Africa and St Lucia.
International tax laws often make it hard to attack a person's estate. Our specialists can also advise on making a local will to cover assets held in a specific jurisdiction.
A Guide To Probate
For those who are not familiar with how probate works here is a brief guide.
The court process by which a Will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.
When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a Personal Representative to distribute the decedent's property according to the laws of Descent and Distribution. These laws direct the distribution of assets based on hereditary succession.
In general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs.
Probate of a Will
The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent's property to the heirs according to its terms.
As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the personal representative or the decedent's Lawyer, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.
Are usually held in the country in which the decedent had been domiciled or permanent residence at the time of death. If, however, the decedent owned real property in another country, the Will disposing of these assets must also be probated in that country where applicable. To qualify as a will in probate, an instrument must be of a testamentary character and comply with all statutory requirements. A document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person—the testator—as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented.
A will made as a result of Fraud or Undue Influence or a will that has been altered so that all its provisions are revoked will be denied probate. If the alteration only revokes certain provisions of the will, the remaining provisions can be admitted to probate.
All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.
As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. Some states have special proceedings to handle such occurrences. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will.
A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to the statute. If it is complete in itself and can stand as a separate testamentary instrument independent of the will, the codicil alone can be admitted to probate. A codicil that has been subsequently revoked by another codicil is not entitled to probate.
A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation usually must accompany the will.
A probate proceeding may involve either a formal or informal procedure. Traditionally, probate proceedings were governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial.
The probate process
begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters testamentary, which authorise him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will.
In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it will be declared void, and the testator's property will pass according to the laws of descent and distribution.
When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. If no one objects to the will at the hearing, it will be admitted to probate.
Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paid, and the estate's assets have been collected, appraised, and distributed to the designated heirs.
Contested Probate Proceedings.
The probate of a will
can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.
are concerned only with external validity, such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument is a Will. Issues of internal validity, such as violation of the Rule against Perpetuities, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.
Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills, and the state, if there is a possibility of Escheat, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.
A personal representative must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid.
Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate.
There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however, have statutes making a trial by jury available in a will contest. Statutes usually impose time limits on the institution of will contests.
Agreement not to Contest
A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consideration—something of value—and the agreement is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an Injunction against the prosecution of the contest, an action at law for damages, or a defence to the contest.
An agreement among heirs and beneficiaries not to contest a will is a way to avoid a costly will contest proceeding. The heirs and beneficiaries negotiate a settlement that may defeat the intention of the testator in how the assets are distributed. A settlement will be valid if all interested parties agree, but it must not exclude anyone entitled to property under the will. Under some statutes, the compromise or settlement must be submitted to the probate court for approval.
Guardianship of Minor Children
Wills often contain instructions on who should be appointed a legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.
A right of appeal
From a probate, a decree is given to any person who would suffer a direct financial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered.
Our team provides an estate administration advisory service to the executors, beneficiaries, accountants and financial institutions when British national dies while living outside of Britain.
Many people leave Britain to live offshore, but keep a rainy day fund in the UK. Other people have ties to Britain and have some assets here. This has led to an increase in demand for advice about how to release UK assets when someone dies domiciled outside the UK.
Unless the value is very low, it is not possible to release the assets until a Grant of Probate (in the case of a Will) or Letters of Administration (where there is no Will) has been obtained from the Probate Court in Britain.
If the deceased lived in the Commonwealth the Personal Representatives will need to reseal the Commonwealth country’s Probate or Letters of Administration in the UK Probate Courts. Once it has been re-sealed the UK assets can be released.
If the deceased died in a non-Commonwealth country, leaving a Will covering his UK or worldwide assets, an application for Probate can be made in the UK. Among other things the UK court will need to see an affidavit of law by a Notary Public of the country where the deceased lived, saying who is entitled to the estate under the law of the deceased’s home country.
If there is no Will, a Grant of Letters of Administration can be sought through the UK Probate Court, following a similar process.
If you are dealing with the estate of someone who lived abroad and had assets in the UK, contact us for a fixed price quote for assistance administering the estate in England.
For more information on how to protect your estate, contact our team today.