In almost all countries where we have had experience with their systems for granting probate, once the original will is submitted to the court for the grant of probate, the court retains the original will and will only release a copy. In some countries, the court retains the original will as soon as it is made.
if you then have assets of the estate in another country and the asset holders are insisting on a probate application being made in their country in order to release those assets to the executor, the court in that second country will also insist on receiving the original will.
This presents you with a “catch-22” problem because, in most instances, there is only one original will and it cannot of course be in two places at once.
Luckily, this problem has been faced many times, especially as people with assets in more than one country has become more common, and accordingly there are a number of solutions.
Reseal of Probate
If both countries are Commonwealth countries, you are able to take advantage of an application for reseal of probate. This means that the second country takes the probate granted by the first country and puts their seal on that probate without requiring the original will to be produced.
For a more detailed look into what a reseal of probate is, see our article here, and why you need one, see our article here.
However, a copy of the original will from the court which produced the probate is required in some circumstances depending on the wording of the original probate itself.
For more information on these requirements in relation to Australian reseals see our article here and for United Kingdom reseals, our article here.
Common examples of reseals in New Zealand are probates coming from Queensland, New South Wales, Victoria (or indeed anywhere in Australia), England, Scotland, Northern Ireland (or indeed anywhere in the United Kingdom) and Canada.
Probate of Foreign Wills
if the country where the original will was probated is not a Commonwealth country, we can still arrange for a grant of probate in New Zealand.
In that case, we make an application for “Probate of a Foreign Will” and this application includes an affidavit signed by a lawyer in the country where the original will was probated both confirming the original will’s validity, but also explaining to our court the procedure in the country of origin which means at that the original will cannot be produced.
In this way, our court is able to produce a grant of probate for a copy of the original will.
For more detail on this type of application, see our artilce here.
Common examples of these types of probates in New Zealand are probates coming from Germany, Austria, The Netherlands, United States of America, China and Japan.
Conclusion
If you find yourself in the unenviable position of having assets in New Zealand and two different countries insisting that you produce one original will, don't hesitate to contact us at jenny.lowe@nzprobatesandreseals.com and we can turn a “catch-22” into a smooth process which catches on nothing.