Q&A: Thinking of including foreign assets in your will?

Q: My sister lives in America but she was born in the UK and still has family here, as well as a property and bank account. When making her will recently, she was advised that any assets held in the UK couldn’t be included in probate there. This is a little concerning, as her pension and savings bonds are all paid into the UK bank account - I am worried these will not be covered by a will if drafted in America. My question is, should I ask her to draft a separate will using a UK lawyer to cover these assets? And, if this UK will is then witnessed and verified in America, is it still valid?

A: If your sister dies in America with a will, and probate is obtained there, would also need to apply for a fresh grant in the UK to deal with your sister’s bank account, her pension and bond payments in the UK. You would not be able to apply for the UK grant until and when the American grant is issued.

You could have a co-ordinated Will covering UK based assets, drafted under the laws of England and Wales. In order for this to work, the will would need to confirm the territory it is covering so that it does not revoke the US based will and similarly, the US Will should be drafted to exclude UK based assets so that it does not revoke the UK will.

By doing this, the advantage is that the American executors and the UK executors can concurrently apply for the issue of the grant in each countries. In other words, the UK executors do not have to wait for the issue of the American grant before they can apply for the UK grant.

Please also consider what might happen should your sister lose mental capacity. This may not necessarily be down to old age, but an accident or sudden illness. Have you both thought about how her mortgage in the UK might be paid, as well as how you’d access her bank account? Wills are so important to protect families in the event of death, but it’s also important to consider how you plan to protect loved ones whilst they are still alive, but are perhaps left unable to make decisions for themselves. Lasting Powers of Attorney covering Property and Financial affairs would help in this scenario.

The law in this field is very complex so it is really important you get specialist advice - we can provide this at Downs Solicitors and I would recommend you contact us to find out more information and the right help for your case.

Sarah Noake

Sarah Noake

Consultant Solicitor

Tel: +44 (0) 1932 588568

Office: Cobham Office

Email: s.noake@downslaw.co.uk