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 allows the person named, the legal authority to deal with and administer the deceased assets moveable and immoveable, which includes but is not limited to the deceased houses, lands, shares, bonds, bank accounts, Investments and crypto currencies. They can also sell or transfer these assets. In some jurisdictions, letters of administration is issued to only those who are entitled to inherit under the intestacy rules.
A Grant of Probate is like the Letters of Administration. It is also a document which is obtained from the Probate court or in some jurisdictions the Probate Registry. However, to obtain a Grant of Probate the person who died must have left a valid Will. The persons named as the Executors or Executors and Trustees in the Will must also apply and obtain a Grant of Probate. The Grant-of Probate gives the persons named in the Grant of Probate the authority to deal with and administer the deceased assets moveable and immoveable. This includes but not limited to the deceased houses, land, shares, bonds and crypto currencies, various bank accounts and i vestments. This enables the so named persons to have access to the various Bank accounts and have the right to 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 those dealing with international assets owned by people who are deceased and those individuals, Executors, Trustees, Administrators who have to administer Cross Border Estates.
Cross Border estate comprises of assets both moveable and immoveable and as explained earlier this includes houses, bonds, shares, bank accounts, investments etc in various jurisdictions outside Nigeria or outside their country of domicile. Those still alive and have cross border assets (i.e. assets in various jurisdictions outside the country), will find the series most useful especially for estate planning.
Owning foreign moveable and immoveable assets is fast becoming the norm for high net worth individuals in Africa and in particular Nigeria.
We have recently seen average individuals doing all they can to own foreign assets and investments in stable economies. Some of the moveable and immoveable assets owned and which we come across quite often in our Probate work include ownership of foreign bank accounts, properties in several foreign jurisdictions, overseas stocks, and bonds.
The consequence of this is that there is an increase in demand for services to obtain cross border Grant of Probate and Letters of Administration and also administering of cross border estates.
Obtaining the Grant of Probate and Letters of Administration and Administering an estate which comprises of properties with moveable and immoveable assets including bank accounts, shares, bonds, and investments in several jurisdictions in the world requires a great deal of insight and experience from lawyers in the relevant jurisdictions.
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, Dubai, Switzerland, Isle of man, Gurnsey and Jersey which are some of the common foreign jurisdictions in which foreign assets are held by Nigerians and nationals of other African countries.
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. some jurisdictions like in the UK, there are exceptional situations where a statutory Will can be made for someone who lacks mental capacity to do so.
This is however a long procedure. One would have to apply to the Court of Protection to be able to do this and it also has to be rectified by the Court of Protection.
In England and Wales and most of the jurisdictions, the 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
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.
In case of Oral Wills, Letters of Administration has to be obtained.
RESEALING GRANT OFPROBATE- 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 and as long as he was domiciled in Nigeria before his death.
Unfortunately, Nigeria is not a signatory to the Hague convention on the conflicts of Law relating to the form of Testamentary Disposition 1961 which provides that signatory countries acknowledge testamentary disposition as valid provided that it was executed in accordance with the law of the country in which it was signed.
Fortunately, by virtue of the Colonial Probates Act 1892 and the Colonial Probate Probates (protected states and Mandated territories) Act 1927 and under the Colonial Probate Act Application order 1965, S 11965/15, 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. However, following the covid pandemic, it now takes the Probate Registry a little longer. It is best to engage the services of an English Private Client Solicitor to assist with this.
With Nigeria, you do not have to apply for a Grant of Probate from the scratch in England and Wales but apply to reseal the Grant of Probate 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 IHT(inheritance Tax) . There is a tax threshold (nil rate band) for inheritance tax. For2022/2023, 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 r turn to HMRC (His Majesty Revenue and Customs) 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.
- b) All bank statements
- c) Deceased’s account statements/passports.
- d) All Premium bonds belonging to the deceased.
- e) All share certificates owned by the deceased.
- f) Value of property/ the document to property or evidence of ownership. If there is a mortgage papers and valuation report if any.
- g) Evidence of cryptocurrency owned if any and value.
- h) Original death certificate for the deceased.
- i) ID for the deceased and proof of his last known address.
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 must be ascertained before filling the HMRC forms. 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 (know your client) documents including their international Passport and proof of address. 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 [United Kingdom]
The processes to reseal a letter of administration in England and Wales is like what I have previously explained above for the resealing of a Grant of Probate in England and Wales. In this case, it will be the original Grant of Letters of Administration obtained from the Probate Registry/Probate Court in Nigeria that the administrators will take to the first meeting with the Private Client Solicitor.
With Nigeria, you do not have to apply for a Grant of Letter of Administration from the scratch in England and Wales but apply to reseal the Letters of Administration obtained from the Probate Registry or court in 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 IHT(inheritance Tax). There is a tax threshold (nil rate band) for inheritance tax. For2022/2023, 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. It is advisable to bring with you at the first meeting with the Private Client Solicitor the original Letter of Administration.
In addition.to this:
- a) All bank statements. Page4
- b) Deceased’s account statements/passports.
- c) All Premium bonds belonging to the deceased.
- d) All share certificates owned by the deceased.
- e) Value of property the document to property or evidence of ownership. If there is a mortgage papers and valuation report if any.
- f) Evidence of cryptocurrency owned if any and value.
- g) Original death certificate for the deceased.
- h) ID for the deceased and proof of his last known address.
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 Grant obtained from Nigeria submitted to the Probate Registry for resealing.
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 instructing the 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.
In my next series, I will be discussing practical guides for estates in Dubai and Switzerland.
Mrs Fola Sowemimo
Solicitor Supreme Court of England and Wales
Barrister and Solicitor Supreme Court of Nigeria