Cross border letters of administration and grant of probate (International Asset Holders Guide)

Letters of Administration is the document that is issued by the Probate court or in some jurisdictions the Probate Registry. It gives the person named in the document the legal right to administer the estate of the person who dies without leaving a Will. It also gives the person the legal authority to administer the deceased assets moveable and unmovable including but not limited to the deceased ‘s houses, lands, shares, bonds, bank accounts, Investments. They can sell or transfer these assets and pay deceased’s legitimate debts. They are called Administrators. In some jurisdictions Letters of administration is only issued to those who are entitled to inherit under the intestacy rules.

A Grant of Probate is obtained from the Probate court or in some jurisdictions the Probate Registry. To obtain a Grant of Probatethe person who died must have left a valid Will. The persons named as the Executors or Executors and Trustees in the Will must apply and obtain a Grant of Probate. The Grant of Probategives the Executors the authority to administer the deceased assets moveable and immoveable including but not limited to the deceased houses, land, shares bonds various bank accounts and investments. They can transfer or sell these assets. They are able to pay the deceased’s legitimate debts.

In this article and others to follow I will be discussing a practical guide to obtaining Cross border Letters of Administration and Grant of Probate for deceased loved ones with assets outside Nigeria

Cross Border estate comprises of assets both moveable and immoveable such as houses, bonds, stocks, shares, bank accounts, investments in various jurisdictions outside Nigeria or outside their country of domicile. Those still alive and have assets in various jurisdictions outside Nigeria will find the series most useful especially for estate planning.

Obtaining the Grant of Probate and Letters of Administration,administrating and disposing such international assets, distributing, assigning or transferring of such international assets once the Letters of Administration or Grant of Probate are obtained, is a significant undertaking and requires in some cases the application of the Principles of Conflict of Law and formalities beyond the day to day practice of a private client lawyer.

The series is on the practical guide, steps and procedures to obtain the Grant of Probate and Letters of Administration in England and Wales and other well known Jurisdictions

For a Grant of Probate to be obtained to administer a deceased estate, there must be a valid Will so I will briefly discuss the requirements for a valid will which cuts across most jurisdictions.

For a Will to be valid, the person making a Will must have the mental capacity to write the Will. The person must be able to make decisions, must be of sound mind and knows what he or she is doing. The person must fully understand that he is making a Will and the nature of what he or she is doing and its effects. The person must be aware or know his assets and those he is bequeathing these assets to.

In some jurisdictions like in England and Wales there are exceptional situations where a statutory Will can be made for someone who lacks mental capacity to do so.

Will must be in writing for it to be valid and this is a widely enshrined law. However in Nigeria, though majority of the Wills are written Wills, Oral Wills in limited cases are also recognised under the customary law in some parts of the country .It has to be spoken in the presence of Witnesses and mostly persons on death bed.

The person making the Will must have made the Will voluntarily without pressure or influence from anybody.

The written Will must be signed by the person who is making the Will in the presence of two witnesses and the two witnesses also sign in the presence of the person making the Will.

Resealing grant of probate-England and Wales
The first step will be to make a valid Will in Nigeria while the person is still alive. It is advisable to engage the services of a solicitor to prepare this for you. Upon the death of the person, the Executors or Executors and Trustees so named in the Will,will apply to the relevant state Probate registry for a Grant of Probate.

Once the Grant of Probate is obtained in Nigeria, arrangements should be made to reseal the Grant of Probate in England and Wales.

It is assumed that the deceased in this write up had his place of domicile in Nigeria. It is irrelevant if he died outside Nigeria as long as he was domiciled in Nigeria before his death. By virtueof the Colonial Probates Act 1892 , the Colonial probate(protected states and Mandated territories) Act 1927 and under the Colonial Probate Act Application order 1965, S I 1965/15, Nigeria being a former British Colony) under a special procedure a Grant of Probate obtained from a Nigerian Probate Registry/court can be resealed within a reasonable period of time. .It is best to engage the services of an English Private Client Solicitor to assist with this.

You do not have to apply for a Grant of Probate from the scratch .You only apply to reseal the Grant of Probate obtained fromNigeria.

The fact that the deceased was not domiciled in England and Wales as of the time of death does not exempt the Estate from Inheritance Tax . There is a tax threshold (nil rate band) for inheritance tax. For 2022/2023, the threshold is £325,000, so if the value of the deceased’s estate is below this figure, no inheritance tax is payable by the deceased’s estate. It is the value of the deceased’s estate only in England and Wales at the time of death that is taken into consideration while calculating the Inheritance Tax payable as the deceased was not domiciled there before his death and not the value of his worldwide estate

In making an application to the Probate Registry to reseal the Grant of Probate the relevant HMRC forms must be completed to ascertain if inheritance tax is payable by the estate.

Prior to filling the HMRC forms and filing all necessary forms to make the application to reseal, the solicitor must have a financial snapshot of the estate within the jurisdiction in order to be able to submit the tax return to HMRC and have enough facts to make the application.

It is advisable to bring with you at the first meeting with the Private Client Solicitor the following;
a) The original Grant of Probate from the Probate Court or Registry in Nigeria or official copy issued by the court.
b) Deceased’s bank account statements and passbooks.
c) All Premium bonds belonging to the deceased.
d) All share certificates owned by the deceased.
e) Value of property. Property Title document and evidence of mortgage if any.
f) Original death certificate for the deceased.
g) ID for the deceased and proof of his last known address.
I) Letter of Authority

The solicitors will also ask to see the deceased’s Will.
The instructing Executors will have to bring to the first meeting all the KYC documents including their international Passport and proof of addresses. The solicitor will perform money laundering checks on both the Executors and the deceased. The source of funds for the deceased has to be ascertained and clarification as to whether he was a politically exposed person(PEP) during the deceased lifetime.

Necessary applications are made and inheritance tax paid if required to be paid. Inheritance Tax is not payable on Assets given to a spouse by the deceased in the Will .

You should always engage the services of a tax adviser if you have a large estate .

Upon the resealing of the Grant of Probate in England and Wales, the Executors or PRs can administer the estate including withdrawing money.

Some clients instruct the solicitors to administer the estate on their behalf. Where the estate is large, in addition to instruct the solicitor, it may be necessary at the same time to instruct a tax adviser.

Resealing of letters of administration-England and Wales
The processes to reseal a letter of administration in England and Wales is similar to the resealing of a Grant of Probate in England and Wales. It will be the original Grant of Letters of Administration obtained from Nigeria or official copy issued that the administrators will take to the first meeting with the Private Client Solicitor.

You do not have to apply for a Grant of Letter of Administration from the scratch but apply to reseal the Letters of Administration obtained from Nigeria.

The fact that the deceased was not domiciled in England and Wales as of the time of death does not exempt the Estate from Inheritance Tax . There is a tax threshold (nil rate band) for inheritance tax. For 2022/2023, the threshold is £325,000, so if the value of the deceased’s estate is below this figure, no inheritance tax is payable by the deceased’s estate. It is the value of the deceased’s estate only in England and Wales at the time of death that is taken into consideration while calculating the Inheritance payable on the estate as the deceased was not domiciled there before his death.

Inheritance Tax is not payable on the worldwide estate of the deceased so in making an application to the Probate Registry to reseal the Grant of Probate the relevant HMRC (Her Majesty’s Revenue & Customs) forms must be completed to ascertain if inheritance tax is payable by the estate.

Prior to filling the HMRC forms and filing all necessary forms to make the application to reseal, the solicitor must have a financial snapshot of the estate within the jurisdiction in order to be able to submit the tax return to HMRC (His Majesty Revenue and Customs) and have enough facts to make the application.At the first meeting with the Private Client Solicitor bring the original Letters of Administration and a)Deceased’s bank account statements
b) All Premium bonds belonging to the deceased.
c) All share certificates owned by the deceased.
d) Value of property, proof of ownership. Mortgage papers if any
e) Evidence of cryptocurrency owned if any and value.
f) Original death certificate for the deceased.
g) ID for the deceased and proof of his last known address.
h) Known debts

All the above are necessary in order to ascertain the value of the estate in England and Wales and fill the HMRC forms. The value of the estate has to be ascertained before filling the HMRC forms. The solicitors may also ask to see the deceased’s Will.

The instructing Administrators will have to bring to the first meeting all the KYC documents including their international Passport and proof of addresses. The solicitor will perform money laundering checks on both Administrators and the deceased. The source of funds for the deceased has to be ascertained and clarification as to whether he was a politically exposed person (PEP) during the deceased‘s life time.

The balance in the banks accounts are ascertained, the value of all investments, shares, bonds etc are collated, houses valued, and total value of estate ascertained, IHT forms returned and Inheritance tax paid, and all necessary forms and Letters of Administration from Nigeria submitted to the Probate Registryfor resealing.

Upon the resealing the Administrators can administer the estate.
Some clients instruct the solicitors to administer the estate on their behalf. Where the estate is large, in addition to instructingthe solicitor, it may be necessary at the same time to instruct a tax advisor.

Some clients during their lifetime sets up lifetime trusts and settlements. This also has tremendous advantages.
• Sowemimo is the Principal partner, HERBERTLEWIS SOLICITORS and Solicitor Supreme Court of England and Wales, Barrister and Solicitor Supreme Court of Nigeria