Prickly Probates Series – Probate of a Foreign Will

Prickly Probates Series – Probate of a Foreign Will

Although many people are still avoiding international travel due to the pandemic, in pre-covid times, it was becoming more and more common for people to move around the world and accumulate assets in multiple countries.

It isn’t uncommon for people with investments or assets in various countries to make a will overseas to deal with these assets. This can create interesting complications when the person dies, and probate applications are required.

Hence, we are dedicating this next instalment of the Prickly Probate Series to applications for probate of foreign wills.

Foreign Probates and Reseals

Suppose someone with assets in New Zealand dies and has no will in New Zealand but does have a will from a Commonwealth Country. In that case, the process is reasonably straightforward in that we can apply for our High Court to put their seal on the probate of the will from the other Commonwealth Country. To understand more about a reseal and how assets in multiple countries are dealt with, see our articles here; What is a reseal? — NZ Probates & Reseals (nzprobatesandreseals.com) and Estates with assets around the world — NZ Probates & Reseals (nzprobatesandreseals.com).

Foreign Wills - Probate Application Process

However, when someone with assets in New Zealand dies and has no will in New Zealand, but does have a will from another country that isn’t a Commonwealth Country, the only option to deal with the New Zealand assets is to probate the foreign will here.

An application for probate of a foreign will is similar to a regular application for probate, but it has a few key additions.

• There must be an affidavit from a lawyer in the country where the will was made confirming that the will is valid in the country where it was made;

• There must be a translation of the will if it is not in English;

• There must also be an affidavit from the person who translated the will showing their qualifications and confirming that the translation is an exact copy into English of what is in the will; and

• Although it is not obligatory, proof that probate of the will has been granted to the same person applying here in the country where the will was made is helpful.

It will almost always be critical that the will is valid in the country where it was signed. Occasionally this isn’t the case depending on the citizenship and domicile of the will maker, where the actual signing of the will took place and whether the countries involved are signatories to the international conventions governing the validity of wills. Still, it is best to have a lawyer involved to navigate the complexities correctly.

Case Studies

I recently had a client who made a will to govern his assets located in New Zealand. The way the will was written and signed meant that it would have been valid in New Zealand, but because he was not a New Zealand citizen, was domiciled overseas and actually signed the will overseas in a country where it was not a valid will in the way he signed it, it was invalid in New Zealand as well.

Another complication is that some wills state that they only cover the assets in a particular country, in which case they can only be probated and used in the country whose assets they state that they cover.

I’ve had a case where a client made a will in the United Kingdom, which said it only covered her assets situated in the United Kingdom. She intended to make another will to cover her New Zealand assets, but she died before completing the New Zealand will. In that case, even though we had a perfectly valid will and probate in the United Kingdom (which we would otherwise have been able to reseal), we could not use it here, and she was treated as being intestate (i.e. having no will) in relation to her New Zealand estate.

Prickly Probates

There are so many twists and turns in these types of applications which we will cover in future articles on further aspects, but suffice to say that probating a foreign will in New Zealand is a classic case of a Prickly Probate.

For More Information

If you are acting for an estate that has assets in New Zealand, but the only will is from another country, we would be happy to help. We make these applications often and streamline this complex process to make it easy for you. Even if you are a lawyer yourself, it can be worthwhile to entrust the probate application to a specialist and save you the time upskilling for an application you will very rarely be obliged to make.

For more information or assistance from our probates specialist, please send Jenny Lowe an email at jenny.lowe@nzprobatesandreseals.com.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

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How long will it take to unlock estate assets?

How long will it take to unlock estate assets? – A timeline for probates, letters of administration, and reseals

A common complaint we hear is how long it takes for people to receive their inheritance once a friend or family member has died.  

Being remembered in someone’s will is often a bittersweet surprise. But, once you have waited for over a year or more to receive that gift, the experience can begin to feel sour. 

Dealing with an estate from start to finish can vary greatly, and how long it takes depends on how complex the estate is and how many people need to be involved (and how many questions they each might have). Yet, any estate that has assets worth over $15,000 will have probate as part of its process, and it is worth knowing about that probate process as it can take some time.

When someone dies, all of the organisations which hold the assets (such as banks, insurance companies and Land Information New Zealand) lock those assets. A grant of probate is the document that unlocks those assets and allows the executor of the will to access them to complete the administration of the estate by following the instructions in the will.

When the person who died had a will, the application is called a grant of probate – when they did not have a will, it is called a grant of Letters of Administration. When one of these has been granted in a Commonwealth country and needs to be approved by our court for use on assets in New Zealand, it is called a Reseal. 

You are required to make all of these applications to the High Court of New Zealand. It usually takes between 4 to 6 weeks from when the application is put into the court to receive a grant. Sometimes the court can be quite a bit quicker than this (at the moment, for example, they are processing most of these applications in roughly four weeks). Still, we always like to encourage our clients to expect the worst and then, if it is faster, they are in a better position.

If an application is urgent (for example, one of the people entitled to money from the estate is struggling financially or if the estate owns a house that has a hole in the roof which needs estate money to protect and repair the home), the court can be convinced to make an urgent grant if you explain to them why it is required. An urgent grant takes only between 1 to 2 weeks.

The real differences in timing come not from the court process itself but from preparing the application and collecting all of the evidence needed for the court to make the grant.

Grant of Probate

The Courts make a grant of probate when there is a will, so it is reasonably easy to discern who the executors are because they are listed in the will.

Lawyers must prepare an application for the estate, which includes an affidavit from the executors to confirm specific details to the court, such as:

• The deceased person really has died.

• The will they are producing is the most recent will that the deceased made

• they really are the executors listed in the will and,

• They promise the court that they will carry out the wishes stipulated in the will.

All executors have to sign this affidavit, and their signatures must be witnessed by a lawyer, Notary Public or a Justice of the Peace.

The original will must also be in the presence of the executors when they sign their affidavits. The necessity for original documents to go back and forth can often add a lot of time. Specifically, when waiting on the post, if the executors don’t live close to the lawyer for the estate. If they do live close by, they can pop into the lawyer’s office to sign, and nothing has to go by post. 

Occasionally, the original documents can get lost in the post, and then a completely different application has to be carried out. 

We always recommend sending original documents with tracked services to avoid this problem where possible.

Letters of Administration

This application has all the same issues as a grant of probate in terms of timing, but with the added complication of needing to choose who the executors are because there is no Will that determines this. Executors under letters of administration are called “administrators”, but the role is almost identical.

Essentially, how the administrators are chosen depends on what family members of the deceased person are alive at the time of their death. The government have a prescribed list for who receives what from the estate. Whoever is entitled to the largest part of the estate in the list is designated the estate administrator. 

The tricky part is that you have to prove, one by one, that the various classes of relatives are not alive or in existence to narrow it down to the relatives who are entitled to the largest portion of the estate. If one relative is entitled to the largest portion, they are allowed to be the administrator. If there is more than one relative who receives the same portion, the relative who applies to be the administrator also has to have consents signed by all the other relatives who are entitled to the same portion of the estate as they are.

This adds another whole dimension of complication in making searches of government registries, finding the people who need consent, convincing them to sign consents, and for the original documents to all be created, signed, and posted back to the estate lawyer.

Reseal

A reseal is the easiest of the three applications. The hard work for the grant of probate or letters of administration has already been completed in another country. 

The executors or the administrators don’t have to sign anything for the application for a reseal – this is taken care of by the lawyer making the application. The only original document that needs to be posted is the probate or letters of the administration itself (although this posting time is often quite long because it is always crossing borders).

However, reseals are not typical applications for most lawyers to make, so we recommend using specialists who often do them. Otherwise, this process can be lengthy for an inexperienced lawyer who needs to up-skill themselves to make the application. 

CONCLUSION

Overall, the application for probate, letters of administration, or reseal is only a part of a long process that can often take 12 months or more from the date that someone died to finish all the jobs in their estate and pay the money the people are entitled to inherit.

However, it often represents a reasonable chunk of that time, and the executors or administrators can do little or nothing with the estate assets until this is granted. Usually, executors and administrators are also required to hold the estate assets and not distribute them to anyone for six months from the date of grant of probate or letters of administration. This timing is a key part of the overall timing of any sizeable estate.

FOR MORE INFORMATION

If you are dealing with an estate where a reseal, probate or letters of administration are required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseals, probate and letters of administration applications, especially for an international estate with assets in New Zealand. We can make these complex applications simple and painless for you.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

Read more articles

United Kingdom reseals

The United Kingdom reseals

Travel and living arrangements between New Zealand and the United Kingdom have become more popular over the years (we lawyers are a part of that statistic, particularly prone to spending time in the United Kingdom working early in our careers). As a result, there are many people with assets in both New Zealand and the United Kingdom.

That means, whichever country you choose to make your home, your assets in the other country require extra administration when you die. Because both New Zealand and the United Kingdom are commonwealth countries, probate for a deceased estate (or letters of administration if the estate didn’t have a valid will) from one country can be resealed in the other. As a commonwealth country, the process is faster and more streamlined than applying for probate in both countries.

If you are dealing with an estate in the United Kingdom with assets in New Zealand, we are experts at resealing United Kingdom probates here in New Zealand. Because we routinely undertake work between the two countries, we also have contacts in the United Kingdom who can assist you with the same questions in the other direction if need be.

WHAT IS A RESEAL?

A reseal is as simple as it sounds. 

When probate or letters of administration are granted, the court which makes that grant “seals” the document by placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal turns the document into a valid grant that can be used to unlock the estate assets.  Without it, all you have is a piece of paper that organisations won’t accept to unlock estate assets.

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it.  That transforms the document into a grant of probate that is only valid in the United Kingdom, for example, to a grant of probate that is valid in both the United Kingdom and New Zealand. 

If you were to present the original grant of probate from the United Kingdom to the bank in New Zealand, they would not accept it and refuse to release the assets.  If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have the New Zealand High Court’s seal on it.

COMMON ISSUES WITH A UNITED KINGDOM RESEAL

We are experiencing a common issue at the moment with UK probates, where the will is not attached, especially given parts of the United Kingdom have recently updated their probate process so that the will is not required to be attached to the probate.

Although this type of probate is perfectly valid within the United Kingdom, it is not enough for our Court in New Zealand to grant a reseal.

For letters of administration, which are granted when there is no will, nothing needs to be attached to the letters of administration for us to arrange a reseal. 

However, with the probate, the will needs to be attached to the probate by the court (for our court to grant a reseal). 

What the court will require if:

• There is no will attached to the probate, but the court supplied a copy of the will: Confirmation from the court that issued the probate that the will supplied is indeed the deceased’s last will. The confirmation must come from the issuing Court, not from the solicitors that acted to receive it.

• There is no will attached to the probate, and the Court did not supply a copy of the will: A copy of the will produced in a way that our court can be confident that it is the will associated with the probate. For example, it has a cover letter from the court or has been certified by a court officer.

Between the multiple lockdowns and the London Registry closing last year, receiving a copy of the will has been taking a longer time than usual – we have one particular file where we have been waiting for a copy of the will for seven months!

Accordingly, if you are dealing with an estate with assets in New Zealand and applying for probate in the United Kingdom, it might be wise to request a copy of the will in one of the manners above at the same time you apply for probate. Having this copy ready to go will ensure you are all prepared for the reseal process.

FOR MORE INFORMATION

If you are dealing with an estate where a reseal is required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseal, probate and letters of administration applications, especially for an international estate with assets in New Zealand. We can make these complex applications simple and painless for you.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

Read more articles

Australian reseals

Australian reseals

Since trans-Tasman travel and living arrangements have become so common in recent years, more and more people are finding that, when a loved one dies, some of their assets are "over the ditch". That means that the grant of probate or grant of letters of administration they received in the country where the deceased lived needs to be resealed in order to access the assets in the other country.

If you are dealing with an estate in Australia which has assets in New Zealand, we are experts at resealing that Australian probate here in New Zealand.

What is a reseal?

A reseal is as simple as it sounds. 

When probate or letters of administration are granted, the court which makes that grant “seals” the document but placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal is what turns the document into a valid grant that can be used to unlock the assets of the estate.  Without it, all you have is a piece of paper which won’t be accepted by organisations to unlock estate assets.

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it. That transforms the document into a grant of probate that is only valid in Australia, for example, to a grant of probate that is valid in both Australia and New Zealand. 

If you were to present the original grant of probate from Australia to the bank in New Zealand, they would not accept it and refuse to release the assets. If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have the seal of the New Zealand High Court on it.

Reseal - common issues

Each state in Australia produces a slightly different probate document and have their own procedures. The state of Victoria has even introduced a revolutionary system to file an application for probate electronically, but these differences can cause problems for reseals.

A common issue we are experiencing at the moment is probates where the will is not attached, especially with probates from Australia.

Letters of administration are granted when there is no will, so nothing needs to be attached to the grant of letters of administration for us to arrange a reseal. 

However, with a grant of probate, the will needs to be attached to the probate by the court which issued the probate (it doesn't work if a copy of the will is attached to the probate by anyone other than the court which granted it[SB1] [GU2] ) in order for our court to grant a reseal. 

This has generated some issues when other courts change their process so that the probate they produce does not have the will attached.

We have also recently had a client whose lawyers in Australia obtained probate, and the will was attached, but the lawyers decided the document was too bulky and removed the will and sent us only the first page of probate.

What the court will require if:

• There is no will attached to the probate, but the court supplied a copy of the will:

confirmation from the court that issued the probate that the will supplied is indeed the last will of the deceased. The confirmation must come from the issuing court, not from the solicitors that acted to receive it. 

• There is no will attached to the probate, and the Court did not supply a copy of the will:

a copy of the will produced in a way that our court can be confident that it is the will associated with the probate, for example, it has a cover letter from the court that issued the probate or has been certified by a court officer.

For more information

If you are dealing with an estate where a reseal is required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, especially those coming from overseas. We can make these complex applications simple and painless for you.

jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

Read more articles

What is a Reseal?

In New Zealand, both probate and letters of administration can be granted for an estate where the deceased lived and died in New Zealand. They may also be granted for estates where the deceased lived and died in another country, but had assets in New Zealand.

These applications are reasonably complex. However, there is a simpler alternative. If you have an estate which meets certain criteria, an application for a reseal can be made.

What is a reseal?

A reseal is as simple as it sounds. When probate or letters of administration are granted, the court which makes that grant “seals” the document by placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal is what turns the document into a valid grant that can be used to unlock the assets of the estate. Without it, all, you have is a piece of paper.

A reseal is when a court in one country, New Zealand for example, takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it. That transforms the document from a grant of probate that is only valid in Australia, for example, into a grant of probate that is valid in both Australia and New Zealand.

If you were to present the original grant of probate from Australia to a bank in New Zealand, they would not accept it and refuse to release the assets. If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have a seal from the New Zealand High Court on it.

How do you get a reseal in New Zealand?

To be able to apply for a reseal in New Zealand, both the country where the grant originates and the country where you wish to reseal it must be commonwealth countries. The exception is Hong Kong which is included by statute as one of the countries where a reseal can be made in New Zealand.

The original grant of probate or letters of administration (or a copy, certified on every page by the court which made the grant ) must be given to the High Court of New Zealand. Then the original or copy will be returned once it has been resealed and it will bear that second stamp.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy, we have one of the few lawyers who specialise in obtaining reseals, probates and letters of administration from the New Zealand High Court for international estates with assets in New Zealand. If you are acting for an estate with assets in New Zealand, get in touch with Jenny Lowe today on jenny.lowe@nzprobatesandreseals.com for a painless and straightforward approach to your application for a reseal or any other related application that needs to be made.

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About the author

04 916 0153 | jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

Read more articles

Estates with assets around the world - Probate and Re-seals

Travel and living abroad are becoming more common, and as a result, it is also more common for people to have assets spread internationally. Even while people are alive, this setup has its complications. Once people have died and the executors of their estate are trying to gather together those assets and discover who inherits them, the situation becomes even more complicated.

Every country has unique laws about who inherits assets and how to treat assets when their owner has died. But what happens when assets are in a different country to the country where their owner died?

Who is entitled to deal with those assets?

If you are not already familiar with probates and letters of administration, read our recent article "Probates and Letters of Administration – what are they?". Essentially after anyone has died their assets cannot be sold, cashed in or the bank accounts closed until an executor is appointed. The court appoints the executor in what we call a grant of probate. (In the case of letters of administration this is known as the administrator of the estate. For the purpose of this article, we will refer to probate and executors as our example.)

Usually, the executor will be appointed in the country where the deceased has lived and died, and that is reasonably simple. All assets in that country can be dealt with by the executor under their grant of probate because the grant of probate is acceptable to all the organisations in that country. 

When there are assets in a different country, the organisations there will not accept a foreign grant of probate. They cannot be sure that it is valid unless it comes from the court in their own country and so will not release the assets they are holding.

 So what can be done?

The easiest way to get around this issue is to get a reseal of the probate. This process still requires an application to the court in the country where the assets the executor wants to access are located, but it is a much shorter application than an application for probate. A reseal is attainable only between Commonwealth countries.

 If the two countries are not both Commonwealth countries, then a fresh grant of probate is required.

Who is entitled to inherit those assets?

The laws that deal with succession are so different across the world that sometimes even wills are overridden by the succession laws of different countries.

The principle of international law that applies to decide which laws apply to any given property in an estate is called lex situs. 

Lex situs states that if an item of property is land (or attached to land - like a house or a building), it is covered by the law of the country where that land is situated. If the asset is anything other than land, it is governed by the laws of the country where the person who owned the asset was domiciled when they died.

FOR MORE INFORMATION

We specialise in dealing with these complex asset structures and have a wealth of resources and a network of international connections to untangle even the most internationally spread-out of estates. 

For more information or to discuss these matters, please don't hesitate to get in touch with our probate specialist Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com 

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jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.

We make these complex court applications simple and painless - contact us today