The process of resealing a grant of probate or letters of administration in the English courts is often required where a deceased individual held assets in England or Wales but was living in a different country.
This process is not usually complicated and can be used for grants issued in various countries, most of which have had or retain a link with the Commonwealth.
Resealing a foreign grant enables the personal representatives of the deceased to administer the estate in England and Wales, giving the original grant similar force and effect as if it had been issued there in the first instance.
However, this process is not possible for all jurisdictions and can present pitfalls. Representatives for deceased individuals therefore should take care when considering how to start the application and should review the following issues.
Reseal or Application for a Foreign Grant?
The Colonial Probates Acts of 1892 and 1927 list the countries to which the option of resealing applies. Most of these countries are British Overseas Territories and have at some stage had links to the Commonwealth. However, where independence has been obtained, the right to reseal in England and Wales has sometimes been revoked. A definitive list is available in the Colonial Probates Act Application Order 1965.
Surprisingly, grants of representation closer to home can be more difficult to address. Grants issued in the Crown Dependencies, such as the Channel Islands, are not recognised in England and Wales and are not eligible for resealing. If the deceased had assets in England or Wales, it is necessary to apply for a separate grant to deal with those assets.
Likewise, an English and Welsh grant cannot be used to administer the estate of someone who lived in the United Kingdom but had assets in the Channel Islands.
The process of applying for a separate foreign grant is more complicated, and therefore costlier, than resealing an existing grant. An oath with details of the deceased, his or her domicile, and the entitlement of the person making the application must be sworn, and applicants should seek advice at the outset to ensure that the oath is drafted to fit the particular circumstances.
A district judge or registrar has the ability to issue a resealed grant to the following applicants:
- The person entrusted with the administration of the estate by the court with jurisdiction at the place where the deceased died domiciled (up to a maximum of four people)
- The person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if more than one such person, the person such as the district judge or registrar may direct
- In the case of a valid will in the English or Welsh language, the executor named in the will or an executor according to the tenor of a will in any language
It should also be noted that a grant in a foreign language will not be accepted for resealing, and that a court-certified translation will need to be sought if the original grant is written in any language other than English.
Sometimes the need for a resealed grant does not arise until many years after the original was issued. If any of the recipients of the original grant have died since it was issued, the English courts require proof of death to ensure that they are giving authority to the correct persons.
It is also vitally important that all of the relevant documentation is to hand prior to making the application as the probate courts are very strict about the evidence required.
Section 2 of the Colonial Probates Act 1892 authorises the resealing of one of the following:
- The original grant;
- A duplicate thereof sealed with the seal of the issuing court; or
- A copy certified as correct by or under the authority of the issuing court.
If there is a will, it should ideally be physically annexed to the copy of the grant. If it is not, the Probate Registry may require extra evidence that the two are linked.
Depending on the value of the UK situs assets, in most cases it is also necessary to file an estate tax return with HMRC prior to making the application, even if just to declare that no tax is payable.
If the UK situs assets are worth less than £325,000, the estate return is relatively simple to complete. However, if the deceased was born in the United Kingdom or was ever domiciled there, the longer, more complicated estate return form must be completed.
The time required for HMRC to process the estate return varies, depending on its work levels and the complexity of the estate. However, HMRC aims to provide the initial certificate required within two weeks of the date of submission.
Once the original/certified copy grant has been collated together with confirmation of the tax payable, an application can be made to the Probate Registry with the appropriate fee.
All being well, the probate registry should process the application within two to four weeks of submission. The personal representatives can then proceed to administer the estate in the United Kingdom.