UK Will – Assets Abroad?
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It is important to make sure your estate planning covers assets abroad correctly.
If you have assets outside of the UK, you may well need a ‘foreign will’, as well as one here in the UK. But beware, there are various potential trip hazards!
There are a few broad points which help us understand what is needed (and why) when we have assets abroad. They are:-
- Not all assets pass via a will anyway (in UK and/or abroad)
- Is a UK will recognised abroad?
- Is a UK Probate recognised abroad?
- Beware cancelling (revoking) wills inadvertently!
And, these issues all point to the fact that where you own assets abroad, you must take expert advice within that/those jurisdiction(s) to ensure that those foreign assets pass as you want them to in the event of your passing.
Not all assets pass by Will
Here in the UK, not all assets pass by our will anyway. And so, our will wont ever ‘deal with them’ anyway. Things that are unlikely to pass via our UK wills might include:-
- Joint bank accounts (and other investments)
- Property owned as Joint Tenants (rather than tenants in common)
- Nominated assets – eg death in service payments
- Trust assets – things we might write into trust during our lifetime
So, you clearly need to be advised wherever your foreign assets as to any principals that might override a will (whether a UK will or one made in that legal jurisdiction).
What is the right of Survivorship?
Joint bank accounts, and property held as joint tenants pass automatically on death to the surviving owner(s). Probate is not needed, as the will does not designate who gets what – the legal principal of the ‘right of survivorship’ overrides the will and decides who gets what (ie the remaining joint owner(s)).
The assets you own abroad may have legal principals which similarly override a will – whether it is UK or otherwise.
Is a UK will recognised abroad?
So, having covered off whether something like the right of survivorship (or other similar principal) may apply to your foreign assets, another question to be asked is would a UK will be recognised abroad and validly deal with the assets in question?
Again, a UK wills solicitor will not be able to advise you on this, and you should seek advice in whatever country your property is held.
It MAY be that your UK might just ‘work’ – but take advice.
Is UK Probate recognised abroad?
Probate is the court order that gives your executors the recognised legal authority to deal with the administration of your estate. And to that end, it is perhaps as if not more significant when dealing with assets abroad. So for example, all UK asset holders (banks, investment companies, insurers, Land Registry) will recognise that a UK Grant of Probate allows the executors of the will to deal in law with the assets of the deceased.
So, the question then arises – will asset holders recognise a UK Grant of Probate once the executors have ‘proved the will’ ie got probate? No is usually the answer, but there are provisions in many countries whereby a UK probate can be converted (often called ‘re-sealed’) within that jurisdiction in a relatively simple process. If the country within which you hold assets allow this, it means that your UK executors can then deal with those foreign assets, and likely too (though not certain) that the terms of your UK will should apply as well.
Be careful not to cancel other wills when you make a new one in another legal jurisdiction!
Wills Abroad – beware cancelling your Will UK!
So, all UK wills must have a clause which revokes (cancels) earlier wills. This is often the same abroad, and here we refer to it as a revocation clause. In UK wills the revocation clause will say something like:-
“I REVOKE all earlier wills made by me”
The dangerous word in there is ALL! Because, if you have assets elsewhere dealing with assets abroad, it is likely that you will not just cancel all earlier UK wills, but that you will cancel ALL wills (worldwide).
Does a foreign will revoke a UK Will?
Yes – it potentially does. And so it is really important to ensure that where you have more than one will (ie wills in different jurisdictions) you do not cancel any others by mistake! To avoid cancelling your UK will (or vice versa) it is important that your will(s) is/are restricted to the particular jurisdiction, and any revocation clause therefore relates only to THAT jurisdiction and any wills within it (that jurisdiction). That way, you should not inadvertently wipe out the wills you have made elsewhere.
Do I need a UK and a Foreign Will?
If you have assets outside of the UK there is every likelihood that you may need two (or more wills). NB, the notion of having more than one will only applies because they would potentially cover other legal jurisdictions. For the avoidance of doubt, there is no need (or indeed no ability) to have more than one UK will. The UK only permits one valid UK will at any one time. You can however have more than one will where the other will(s) apply to other legal jurisdictions.
Assets abroad – a checklist for your Will(s)
So, if you have assets abroad, here is a brief checklist of the things to be mindful of:-
- Take expert legal advice in each jurisdiction (can not stress this enough)!
- Do local laws over-ride wills (whether a UK or foreign ill)?
- Does the foreign jurisdiction recognise UK Wills?
- Does the foreign jurisdiction recognise UK Probate?
- Beware cancelling (revoking) other wills by accident
- Consider having wills within each jurisdiction
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