Why does resealing a foreign grant of probate occur and which countries’ grants of probate can be resealed in England and Wales? Gill Steel of LawSkills explains how to reseal foreign probate.

Why does resealing a foreign grant of probate occur?

If a grant of probate has been taken out in a country to which the Colonial Probates Acts* apply, the expense and inconvenience of taking out a fresh grant to deal with assets in England and Wales can be avoided and the grant taken out in the corresponding country will simply be resealed by the probate service in England and Wales. This makes the grantee of the foreign grant the legal personal representative, who is responsible for managing the deceased's estate (money property and possessions) in England and Wales. 

There are reciprocal arrangements which enable grants issued in England and Wales to be resealed in the country concerned. 

*For the purposes of this article, reference to the ‘Colonial Probates Acts’ means Colonial Probates Act 1892, the Colonial Probates (Protected States and Mandated Territories) Act 1927 and various orders in council made as a result, in particular The Colonial Probate Act Application Order of 1965.

What does ‘resealing’ mean?

‘Resealing’ simply means that the foreign grant of probate is re-issued so that it becomes effective to administer any estate in England and Wales.

Which countries’ grants of probate can be resealed in the UK?

So long as the deceased dies domiciled in either England and Wales, Scotland, or Northern Ireland, a grant taken out in any of the three jurisdictions will be recognised in the other parts of the United Kingdom without any need for further formality as long as it contains a note of the deceased’s domicile.

The Colonial Probates Act Application Order 1965 sets out in Schedule 1 all the countries to which resealing applies. There are 70 jurisdictions altogether, including the likes of:

• Australia
• New Zealand
• Hong Kong
• Singapore
• Kenya
• South Africa

Generally, they are the old commonwealth countries, and the Acts apply not withstanding that most have obtained their independence.

How do you reseal foreign probates in England and Wales?

The procedure for re-sealing grants is governed by rule 39 of The Non-Contentious Probate Rules 1987 (NCPR) and is as follows:

(1) An application under the Colonial Probates Acts 1892 and 1927(1) for the resealing of probate or administration granted by the court of a country to which those Acts apply may be made by the person to whom the grant was made or by any person authorised in writing to apply on his behalf.

(2) On any such application an Inland Revenue affidavit or account shall be lodged. The inheritance tax (IHT) account must be submitted to HMRC before the documents are lodged at the probate registry and any IHT due must be paid. An IHT account may not be required if the ‘excepted estate’ rules apply. Where the estate is an excepted estate the form IHT 207 must be sent to the registry with the other documents.

For the rules relating to excepted estates see GOV.UK. Please note that these rules are likely to be reviewed shortly as announced in the Budget 2021.

(3) Except by leave of a registrar, no grant shall be resealed unless it was made to such a person as is mentioned in sub-paragraph (a) or (b) of paragraph (1) of rule 30 or to a person to whom a grant could be made under sub-paragraph (a) of paragraph (3) of that rule.

This means that the person to whom the foreign grant is made must be the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or, where there is no such person, to the person beneficially entitled to 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 registrar may direct.

In the case of NCPR rule 30(3), without any order being made probate of any will which is admissible to proof may be granted:

1. If the will is in the English or Welsh language, to the executor named in the will; or
2. If the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person.

(4) No limited or temporary grant shall be resealed except by leave of a registrar.

(5) Every grant lodged for resealing shall include a copy of any will to which the grant relates or shall be accompanied by a copy thereof certified as correct by or under the authority of the court by which the grant was made, and where the copy of the grant required to be deposited under subsection (1) of section 2 of the Colonial Probates Act 1892 does not include a copy of the will, a copy thereof shall be deposited in the registry before the grant is resealed; that is, a copy of the will certified as correct by the issuing court must also be lodged.

Where the application is made by someone on behalf of the grantee, the power of attorney or other document authorizing that person to apply must be lodged together with a copy for the court to retain (the original will be returned).

(6) The registrar shall send notice of the resealing to the court which made the grant.

(7) Where notice is received in the Principal Registry of the resealing of a grant issued in England and Wales, notice of any amendment or revocation of the grant shall be sent to the court by which it was resealed.

Payment of the probate fees will also be required.

Who can apply to reseal foreign probates?

By virtue of NCPR rule 30 the grant must have been issued by the courts of the country of the deceased’s place of domicile and the grantee must be the person entrusted and/or beneficially entitled. The only exceptions are where the grantee is the executor or there is separate evidence to establish beneficial entitlement.

For example, Angus died domiciled in New Zealand and the grant in his estate was issued from the court in Western Australia to Elaine. Elaine is not entrusted by the court of the place of domicile so NCPR rule 30(1)(a) does not apply. If Elaine has evidence of beneficial entitlement under the law of Angus’s domicile on death, then NCPR 30(1)(b) may apply; or Elaine would need to be the executor and NCPR 30(3)(a) applied. Thus, Elaine would only be able to apply to reseal the grant issued in Australia if she were a beneficiary or an executor under the law of New Zealand.

About the author

Gill Steel has been immersed in Wills, Probate, Trusts, Tax & Elderly Client law for the entirety of her long career as a solicitor, trainer & consultant. She curates www.lawskills.co.uk and the LawSkills Monthly Digest subscription service.

See also

What to do when someone dies abroad

Why you should make a 'foreign will' for assets abroad

A brief guide to wills and estates in France

The duties of an executor: what to do when someone dies

Find out more

Colonial Probates Act 1892 (Legislation)

Colonial Probates (Protected States and Mandated Territories) Act 1927 (Legislation)

The Colonial Probate Act Application Order of 1965 (Legislation)

The Non-Contentious Probate Rules 1987 (Legislation)

IHTM06013 - Rules about excepted estates: exempt excepted estates (GOV.UK)

Image: Getty Images

Publication updated: 8 July 2021

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.