Wills and Probate When Assets Span Multiple Countries

For internationally mobile families, the administration of a deceased person's estate can become a multi-year, multi-jurisdiction ordeal. The fundamental problem is that there is no global probate system. Each country where the deceased held assets has its own rules, its own court system, and its own requirements for recognising foreign grants of probate — or not recognising them at all.

Planning in advance significantly reduces the burden on executors and beneficiaries. Understanding the landscape is the prerequisite for that planning.

What Is Probate?

Probate (or, in Scotland, confirmation) is the legal process by which a deceased person's will is validated and their estate is administered. In England and Wales, the executor named in the will applies to the Probate Registry for a Grant of Probate, which authorises them to collect assets, pay debts, and distribute the estate to beneficiaries.

Without a Grant of Probate, most financial institutions (banks, investment platforms, registrars) will not release assets to executors. The grant is both authority and protection — it assures institutions that the person acting has the legal right to do so.

Intestate estates (where there is no will) are administered under intestacy rules — in England and Wales, this is governed by the Administration of Estates Act 1925 and its subsequent amendments. The rules prioritise spouses/civil partners, then children, then more distant relatives. An unexpected consequence for many internationally mobile individuals is that their assets in multiple jurisdictions will each be governed by the intestacy rules of the relevant country — which may produce very different outcomes.

The Problem: Separate Grants for Separate Countries

The core challenge of international estates is that a UK Grant of Probate is generally not automatically recognised overseas. Most countries require their own local grant before local assets can be released.

This creates ancillary probate — a second (or third, or fourth) probate process run in parallel with the primary process in the deceased's principal country.

Examples of ancillary probate requirements:

• A UK resident who owned a property in France will require a French notaire to handle the French estate separately from the UK probate process
• A UK grant is not automatically sufficient to release US brokerage accounts — a court in the relevant US state may need to issue its own letters testamentary
• Similarly, Spanish, Cypriot, and UAE assets each require local processes

The cost and time implications are significant. Each jurisdiction adds legal fees, translation costs, potential inheritance tax exposure, and months or years of delay.

EU Succession Regulation: Article 22 Choice of Law

For estates involving assets in EU countries, the EU Succession Regulation (EU No 650/2012) is an important but frequently misunderstood framework.

The default rule under the Regulation is that the law of the country of the deceased's habitual residence at death governs the succession to all EU assets. This creates a single governing law for EU movable assets, which simplifies cross-border succession within the EU.

Article 22 provides a crucial exception: an individual can choose that the law of their nationality shall govern their entire succession (not just in one country, but for all EU assets). This election must be made explicitly in a will or a declaration with equivalent effect.

Why this matters for British nationals in Europe: a UK national habitually resident in Spain would, without an Article 22 election, have their succession governed by Spanish law — including forced heirship rules that require a substantial portion of the estate to pass to children, regardless of the will's terms. By making an Article 22 election in favour of UK law, they can apply English succession law to their EU assets, which does not have forced heirship.

Post-Brexit complication: the UK no longer participates in the EU Succession Regulation. UK courts do not apply it; UK assets of EU residents are handled under English private international law rules. The Article 22 election by a UK national benefits the EU-asset portion of the estate but does not affect the UK portion.

Practical steps:

1. Include an explicit Article 22 election in the will ("I elect that the law of England and Wales shall govern my succession in accordance with Article 22 of EU Succession Regulation 650/2012")
2. Take advice from lawyers qualified in the relevant EU countries on whether the election will be recognised in each country where assets are held (some countries have adopted the Regulation fully; others have made reservations)

UK-US Estates: A Common Case Study

Many internationally mobile British individuals have significant UK and US assets: UK property, UK pensions, UK investment accounts, and US property or investments acquired during US residence or business activity.

The UK side: the executor obtains a UK Grant of Probate in the usual way. UK assets are administered, IHT is assessed and paid, and the estate is distributed.

The US side: the US estate is complicated by:

1. US estate tax on US-situated assets of non-residents: the federal estate tax exemption for non-US residents is only $60,000, versus millions for US citizens. A UK national with a $1.5 million Miami apartment faces a potentially large US estate tax liability. The UK-US estate tax treaty provides partial relief but does not eliminate exposure.

2. Ancillary probate in the relevant US state: a Florida court must be involved for Florida real property. A New York court for New York property. Each state has its own rules and timelines.

3. FIRPTA withholding on property: at the point of estate sale (to raise funds for distribution), FIRPTA withholding of 15% of gross sale proceeds may apply to the non-resident estate.

4. US brokerage accounts: a foreign probate order is generally not sufficient to release US brokerage accounts. The US financial institution will typically require letters testamentary issued by a US court.

Practical implications:

• The UK estate may be largely concluded within 12–18 months
• The US side may take 2–4 years, particularly if real property is involved and if the estate tax position is complex
• Specialist dual-qualified (UK and US) attorneys are valuable for estate planning in advance and for estate administration at the point of death

Governing Law and Conflict of Laws

Different assets are governed by different laws:

Immovable property (land and buildings): governed by the law of the country where the property is situated (lex situs). This is a universal rule — every country applies it.

Movable assets (bank accounts, investments, personal property): in the absence of a treaty or regulation, many countries apply the law of the deceased's domicile. This is where domicile — as a legal concept — becomes critical.

Domicile vs residence: UK law distinguishes between domicile and residence. Domicile is the country a person regards as their permanent home, not necessarily where they currently live. An individual may be resident in Dubai for 15 years but retain an English domicile of origin if they always intended to return to England. Domicile has profound implications for which country's inheritance laws govern the movable estate.

Practical Steps for Multi-Jurisdiction Estate Planning

1. Draft a comprehensive will (or wills). Consider whether a single will or multiple jurisdiction-specific wills best serves the estate. In some cases, a single English will with careful drafting works internationally; in others, a French will for French assets (alongside the English will) simplifies the French process.

2. Register the will. In many continental European countries, wills can be registered in a central registry (e.g., FNRAO in France, RNTRC in Spain). This is not compulsory but makes the will discoverable after death.

3. Maintain clear records of assets by jurisdiction. An asset register — updated annually — is invaluable for executors who may not know the full picture.

4. Review beneficiary designations. Insurance policies, pension plans, and some bank accounts pass by beneficiary designation, not through the will. These designations should be reviewed and updated alongside the will.

5. Consider a trust for US assets. A properly structured revocable trust (or, for US estate tax planning, a foreign trust holding US assets via a corporate layer) can avoid US ancillary probate entirely.

6. Powers of attorney for living incapacity. International powers of attorney (and in some countries, separate Lasting Powers of Attorney-equivalent documents) ensure that assets can be managed if the owner loses mental capacity before death.

Specialist International Probate Firms

For estates of meaningful complexity, specialist firms are worth engaging early:

• Law firms with dedicated private client departments experienced in cross-border estates (Withers, Boodle Hatfield, Hunters, Farrer & Co in the UK)
• US attorneys specialising in international estate administration (typically found at larger national firms or specialist boutiques)
• French notaires with experience handling Anglo-French estates
• In Spain and Cyprus, local notaries and English-speaking lawyers registered with the respective Bar are the primary professionals

How Global Investments Can Help

Global Investments advises clients on structuring international wealth in ways that reduce the probate complexity for executors and beneficiaries — including the appropriate use of offshore bonds (which can pass outside the estate in some structures), beneficiary nomination strategies for pensions and life insurance, and introduction to specialist cross-border estate planning counsel. We also assist executors of estates under administration when investment decisions need to be made during the probate process.

This article provides general information about international probate and succession. Laws differ significantly between countries and change frequently. This article is not a substitute for qualified legal advice in each relevant jurisdiction. Always consult specialist estate planning and probate lawyers.