I have been contact by a client whose Brother had a Will (with a settlemen trust) in the USA and the estate there has been settled. However, he has accounts in the UK worth £160,000. He is non-domiciled and was a non-domicile when the USA settlement trust was set up.
We are submitted a probate application, however, the lawyer in USA has only provided us with a copy of the Will. For the probate application do we need this to be notarized and legalised in the USA.
And do we submit a paper application to HMCTS or can this be an online application.
If probate of the Will has been obtained in USA, I would think that a sealed and certified copy of the probate and Will should be obtained by the lawyers there and submitted with a PA1P to Newcastle.
Assuming the PR here will be the same person as on the US Grant, the application will be under Rule 30.1.a NCPR 1987. You will need a formal copy of the US Grant. They may not recognised the term ‘sealed and certified’. ‘Court-sealed’ should do the trick. Our Probate Registry will also accept a notarised copy, but that may not be as easy to obtain in the US. Nothing ever needs to be apostilled for the Probate Registry to accept it.
The application for all non-dom deceaseds must be on paper, unless the application falls under Rule 30.3.b.
Further to Christopher’s post, I have recently submitted a notarised copy of a foreign will in similar circumstances (although the domicile was not the US and the original will was not in the English language) and they have said that it is not acceptable and they require a court sealed and certified copy from the original court. I wonder if this is because the original was not in English? We did provide a notarised translation?
Thank you everyone for all your help, it appears probate has not been obtained in the USA, so we just have a US Will.
I assume we cannot submit the Will to the UK probate registry and will need the executor in the US to get a grant in the US before we can apply in the UK.
Dear Rachel, you need to ask some questions of the USA lawyer such as why was a Grant not obtained? Where is the original Will? In what state was the brother living as at the date of death? There may be a valid reason why a Grant was not obtained as all of the States have different probate procedures, some simple and some complex involving court appearance at several stages. The cost might therefore have been prohibitive with reference to the value of the USA assets.
If possible get a court certified copy of the USA Grant plus an Apostille. This should be sufficient for the UK Probate Registry.
If in the USA no Grant has been obtained (for example the Will does not appoint an Executor), then the Grant in the UK should issue to the persons entitled to administer the estate according the domicile of the Deceased (see Dicey). The Grant could be issued to a local solicitor appointed to act by the the USA Executor, and will probably be an Ancillary Grant and not the main Grant. An Affidavit of Law as to the validity of the Will will usually be required. If you can use the original Will, that will be of great advantage. If this cannot be obtained an official copy (I doubt a notarised copy will be sufficient, but you can try) with Apostille maybe needed. Do not forget that the Probate Registrar has considerable discretion so it might be an idea to approach him or her first and see what the Probate Registry requires.