In 2017, BVI entirely revoked its old probate rules. The new rules – the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017 (New Rules) came into effect on 1 November 2017.

The New Rules didn't introduce any fundamental changes to the BVI probate process but they did make numerous important changes to the documents and steps involved and clarified a number of significant issues. You can read more about these changes in our briefing here.

There are three types of Grant in the BVI:

  • Grant of Probate
  • Grant of Letters of administration with will annexed
  • Grant of Letters of Administration

A number of preliminary questions should be considered before making an application, including:

  • Did the deceased leave a will(s)? If they did, is it an original will - and if it isn't, where is the original will? You should also confirm whether the will covers BVI assets, and if it doesn't, it's important to determine whether there is one or more separate will(s) for the disposition of BVI assets
  • Who will be the applicant? (the question of who is eligible is explored below)
  • How will the applicant prove their relationship with the deceased?
  • Where was the deceased's last domicile?
  • When did the deceased pass away?
  • Is there any grant issued in the deceased's domiciled jurisdiction?
  • What are the deceased's assets in BVI and their value?
  • Is there any name discrepancy between the death certificate and share certificate?
  • Is the deceased the sole shareholder and sole director of a BVI company?

If there is any uncertainty in terms of the answers to these questions, prospective applicants should discuss with their legal advisors.

Who can be the applicant?

Different rules apply as to who can apply for which type of grant, depending on whether the deceased had a will or not, which language the will was made in and other variables. The following individuals are able to apply according to the New Rules:

  • An individual named as executor in a valid will made in the English language
    • Rule 28(2) "Where the deceased left a will in the English language which is admissible to proof, a grant of probate may be made to the person named as executor therein"

This rule applies for a will in the English language only and is not applicable to a will in other languages such as Chinese and Japanese.

  • An individual effectively designated as executor in a valid will made in languages other than English
    • Rule 28(3) "Where the will describes the duties of a named person, in terms sufficient to constitute him or her executor, according to the tenor of the will, a grant of probate may be made to that person."

Whether probate may be made to the named person depends on the actual wording of the will.

In circumstances where the deceased was non-BVI domiciled and died without leaving a valid will, in the first instance, the domiciliary personal representative of the deceased's estate has the first priority to apply for letters of administration. If there is no such person, then the court would look to the person beneficially entitled to the estate under that jurisdiction's law and the court has the jurisdiction to appoint a suitable person :

  • Rule 28(5)(a) – "to the person entrusted with, or entitled to, the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;
  • Rule 28(5)(b) – "where there is no person so entrusted, to the person beneficially entitle dot the estate by the law of the place where the deceased died domiciled or if there is more than one person so entitled, to such of them as the court may direct; or
  • Rule 28(5)(c) – "if in the opinion of the court the circumstances to require, to such person as the court may direct."

Is there a deadline for making an application?

There is no deadline for making an application, however an application that is made more than three years after the death of the deceased will need to include an explanation of the reason for the delay.

Advertising requirements

The applicant is required to advertise the application for a grant of probate or letters of administration on no fewer than two occasions in two weeks in a local BVI newspaper. While this requirement is the same as under the old rules, the form of such advertisements is now standardised. The information to be included in such an advert is rather limited, only name, address and date of death of the deceased and the name and address of the applicant. No other information such as beneficiary and estate value is required to be made public.

Declaration of Estate Value

It is explicitly required under rule 29(1)(a)(iii) to set out in the application the gross value of the estate to be covered by the grant. Gross value means the value or valuation range of the estate with deducting for debts, encumbrances, funeral expenses or death duties. The gross value of the estate determines the filing fee of the declaration and account of the estate.

The specific valuation range (all in US$) is as follows:

  • Below $50,000
  • $50,000 to $250,000
  • $250,001 to $500,000
  • $500,001 to $1,000,000
  • $1,000,001 to $5,000,000
  • Over $5,000,000

Filing fee

There is a new fee schedule provided in Eastern Caribbean Supreme Court (Court Proceedings Fees) (Virgin Islands) Rules, 2017; the amount has increased and the categories of fees have been expanded as well. Part of the filing fees depends on the value of the BVI estate and there is a flat fee for an estate with a value of over US$5,000,000. Please refer to our briefing Increase in BVI Probate Fees for more details.

Affidavits

Alongside sending a duly marked original or official certified copy of the will of the deceased (if any), the application procedure requires, where relevant, the submission of:

  • Affidavit of the facts setting out:
    • The place of execution of the will
    • The domicile of the testator at the time of the execution of the will or at his or her death as appropriate
    • The habitual residence of the testator at the time of his or her death
  • Affidavit of translation
  • Affidavit as to foreign law
  • Affidavit of due execution of the will by witness

Where possible, the Affidavit of due execution should be signed by one of the attesting witnesses confirming that the will was executed by the deceased in the presence of witnesses. If the attesting witness isn't available, any person who was present when the will was made could make an affidavit to support the application.

A number of other affidavits may be required depending on the circumstances, including affidavit of alterations, of plight and condition and finding of will, of incorporation of documents, of date of execution of will, of alias and/or of delay.

Timeline

In general, it takes around two to five months to obtain a grant after submitting an application.

If the Probate Court has concern about the application, it may raise questions through sending defective notice. A grant will not be issued unless and until all the questions have been answered satisfactorily. It is important to anticipate the issues and address those issues in the application to expedite the whole process.