Cross‑Border Estates: Dealing with English Assets When the Deceased Lived Abroad

Private Clients Insights, Wills, Probate and Inheritance

Modern families are increasingly international. It is now common for a person to live, work and retire in several countries, while retaining assets in England and Wales. When they die, the question quickly arises: which law applies and what needs to be done to deal with their English assets — and English probate for foreign-domiciled estates is often the crucial step.

We set out below the key English private international law rules and practical considerations that apply where a deceased person was domiciled or long‑term resident outside England and Wales, but left assets there.

Why an English Grant of Representation Still Matters

Even if the deceased lived and was domiciled abroad, and their heirs have rights under foreign law, an English grant of representation is usually still required to:

• Collect and distribute English bank accounts and investments;
• Sell or transfer English real estate; and
• Bring or continue English court proceedings involving the deceased’s rights.

In Viegas v Cutrale [2024] EWCA Civ 1122, the Court of Appeal held that heirs of foreign‑domiciled individuals could not simply sue in England in their own names, even though they had direct inheritance rights under their home law. They had to act through a personal representative holding an English grant. Thus, if there are English assets or English proceedings, someone must usually obtain an English grant, regardless of what foreign law says about who “owns” or succeeds to the estate.

Which Law Governs Succession to English Assets?

English private international law draws a key distinction between movable and immovable property.

• Movable Property – Law of deceased’s domicile

Movable property (cash, securities, investments, chattels, IP and so on) passes under the law of the deceased’s domicile at death (the lex domicilii).

Example:

A person dies domiciled in Bulgaria with an English investment portfolio and UK bank accounts. As a starting point, Bulgarian succession law determines who is entitled to those English assets.

• Immovable Property – Law where the property is located

Immovable property (land and buildings) is governed by the law of the country where the property is situated (the lex situs).

Example:

An English flat owned by someone domiciled in Bulgaria will pass under English succession law, while a Bulgarian property in the same estate will pass under Bulgarian law.

In practice, this often means that one estate is governed by multiple legal systems at once. Early mapping of the deceased’s domicile and asset locations is therefore critical.

Domicile: More Than Just Where You Live

Domicile is the key connecting factor in English conflict of laws for succession to movables, for parts of will‑validity rules and (historically) for UK inheritance tax.

Domicile is not the same as residence or nationality. In simple terms, domicile reflects a person’s “permanent home” – the country with which they have their most enduring connection.

English law recognises three main types of domicile:

• Domicile of origin – acquired at birth (usually the father’s domicile). It is highly “sticky” and revives if no other domicile is acquired.

• Domicile of dependency – for those under 16, following the person on whom they are legally dependent.

• Domicile of choice – acquired by:

(i) living in a country, and

(ii) intending to remain there permanently or indefinitely.

Long‑term residence alone is not enough. A clear plan to leave after a defined event (for example, retirement, completion of a contract or return after children finish school) can prevent a domicile of choice being acquired. The existing domicile of origin will then usually persist.

For cross‑border estates, properly analysing domicile is step one. It drives which law governs movables and often shapes both strategy and expectations.

Wills with an International Element

1. Formal Validity – Wills Act 1963

The Wills Act 1963 (implementing the 1961 Hague Convention on the Form of Testamentary Dispositions) gives a flexible framework for deciding whether a will has been properly executed when there is an international element.

A will is treated as formally valid in England if it complies with the internal law of any one of the following:

• The country where it was signed;
• The country where the testator was domiciled at signing or at death;
• The country where the testator had their habitual residence at signing or at death; or
• The state of which the testator was a national at signing or at death.

Further specific rules in the Act deal with, for example, wills on ships or aircraft and wills disposing of land. The Act also expressly excludes renvoi: when applying those foreign laws, the English court looks only at each country’s domestic rules on form, not the relevant countries’ own conflict rules. This offers flexibility to internationally mobile individuals, as there are several different connecting factors which can potentially validate a will for English probate purposes notwithstanding failure to comply with formal validity rules in alternative scenarios.

2. Essential Validity – Substantive Succession Rules

By contrast, essential validity (capacity, power to dispose, forced heirship and similar issues) follows the same split as succession:

• For movables, the law of the testator’s domicile at death applies.
• For immovables, the law of the property’s location applies.

This is where civil law forced heirship rules often bite: even where an English‑style will appears to give everything to one beneficiary, if the will is governed by foreign essential validity rules, foreign law may require fixed shares for a spouse or children, and English‑situated movables may need to be distributed accordingly.

3. Construction of Wills

The construction (interpretation) of a will is governed by the law the testator is taken to have intended. In the absence of an express choice of law, English conflict rules generally presume this to be the law of the testator’s domicile when the will was executed, not at death.

The Court of Appeal’s decision in Curati v Perdoni [2012] EWCA Civ 1381 illustrates how this works in practice in the context of overlapping English and Italian wills, and the courts’ reluctance to find that a later foreign will has unintentionally revoked an earlier English one.

For clients with multiple wills in different countries, careful drafting and coordination between advisers is essential to avoid accidental revocation and conflicting dispositions.

Procedure for Obtaining English Grants for Foreign‑Domiciled Deceased

Where the deceased was domiciled outside England and Wales but left assets here, the Non‑Contentious Probate Rules 1987 (NCPR) set out the routes to an English grant.

1. Where There Is an Admissible Will Naming an Executor

If there is a will that is admissible in England and Wales and it names an executor (or clearly appoints someone to act as such), the court can issue a grant under rule 30(3)(a) NCPR 1987. The executor can be appointed even if the will is in another language (with a certified translation). An executor who has renounced abroad has not necessarily renounced in England and Wales – renunciation here must be specific. Where one executor applies, power is normally reserved to any non‑applying executors. This route is generally the most straightforward for foreign‑domiciled estates with a clear will and executors willing and able to act.

2. Where There Is No Admissible Will or No Executor

If there is no admissible will or no executor, rule 30(1) NCPR 1987 allows the court to direct that a grant be made to, for example:

• A person appointed by the court of the country of domicile to administer the estate; or

• A person beneficially entitled under the law of the domicile.

Evidence of foreign law (often by expert affidavit or notarial certificate) will usually be required so the English court can be satisfied who is entitled to seek the grant and in what capacity.

3. Estates Largely Consisting of English Real Property

Where the English and Welsh estate consists wholly or substantially of land and buildings in England and Wales, rule 30(3)(b) NCPR 1987 allows the court to issue a grant as if the deceased were domiciled in England and Wales. The usual domestic order of entitlement (by reference to the presence or absence of a valid will) then applies. This can be a pragmatic route where a foreign‑domiciled individual’s only English asset is real property.

Inheritance Tax and Cross‑Border Estates

1.  Domicile, Residence and UK Inheritance Tax

Historically, UK‑domiciled individuals were subject to UK inheritance tax (IHT) on their worldwide estate. Non‑UK domiciled individuals were subject to IHT only on UK‑located assets, subject to “deemed domicile” rules for long‑term residents or those with a UK domicile of origin.

From 6 April 2025, the UK is moving towards a residence‑based IHT regime, under which long‑term residents will be taxed on worldwide assets regardless of common‑law domicile; and those leaving the UK may remain within the IHT net for a defined “tail” period.

For international families, this increases the importance of early planning around both residence and domicile, and careful review of longer‑term tax exposure.

2. Double Tax Treaties

Where both the UK and another country impose estate or inheritance taxes, a limited number of double taxation conventions may mitigate or eliminate double tax, typically by giving one country primary taxing rights; and/or allowing a credit in one jurisdiction for tax paid in the other. This analysis often sits alongside the private international law questions on succession and grants and should be considered at an early stage in estate administration.

EU Succession Regulation (Brussels IV): Still Relevant Post‑Brexit

The UK never adopted the EU Succession Regulation (Regulation (EU) 650/2012), but it remains highly relevant for English clients with assets or connections in participating EU Member States.

Under the Regulation regime, for deaths on or after 17 August 2015, the default rule in participating states is that the law of the deceased’s habitual residence at death governs succession to their entire estate.

Individuals can elect the law of their nationality to govern their succession – for example, an English national habitually resident in Spain can elect for English law to apply and thereby avoid local forced heirship rules.

A European Certificate of Succession can simplify recognition of heirs, legatees and executors in the EU.

From the English side, Brussels IV affects how foreign courts will treat assets in their jurisdictions and interacts with traditional English conflict rules, including potential renvoi where foreign law is the applicable law for English‑situated movables.

Practical Challenges

Cross‑border estates are rarely straightforward. Key challenges typically include:

• Establishing domicile and identifying which succession laws apply to which assets;
• Coordinating multiple wills and advisers across different jurisdictions;
• Managing conflicting rules on forced heirship and testamentary freedom;
• Securing the right English grant of representation as efficiently as possible; and
• Navigating inheritance tax and reporting obligations.

NBLO regularly advises on estates involving English assets and foreign‑domiciled individuals, working closely with local counsel worldwide. If you are dealing with the English assets of someone who died living abroad – or you are planning ahead with an international footprint – we would be pleased to discuss how these rules apply in your specific circumstances.