I have a client who was born in Edinburgh, moved to England where he married and had children before divorcing a few years ago. After his divorce he moved to Hong Kong before settling in Holland where he sdaly passed away.
At the time of his death he had bank accounts in the UK, Hong Kong and Holland and appeared to be resident in Hong Kong for income tax purposes (although he did complete tax returns in the UK in recent years as well).
He has received a death benefit payment and the pension company is requiring a grant of probate. Assuming he is domiciled in the United Kingdom is it correct that I can apply for a Grant limited to the UK Assets and if so who would be entitled. He remains divorced and has two children, one who is 18 and one who is 12?
Whilst not stated, I take it the deceased died intestate.
I believe the primary grant should normally be obtained in the deceased’s “home” jurisdiction. If domiciled within the UK, the question will be whether his domicile of origin of Scotland was revived, so that a Scottish confirmation would be the primary “grant”.
If he had established a domicile of choice at the time of his death, then I would expect the primary “grant” to be obtained in that jurisdiction.
Having said the above, I recall the Netherlands my look to residence rather than domicile or nationality, so that there could be a competition between there and Scotland as to which is the primary jurisdiction, and which Succession Law applies.
If the deceased died domiciled within the UK, any grant issued within the UK would be limited to UK assets in any event. If he was domicile outside of the UK, then any UK grant would only give title to assets within that particular jurisdiction (England & Wales, Scotland or Northern Ireland).
So far as the UK is concerned, the children would be entitled to apply for representation. At this time, only the older child, or their attorney/factor would be able to apply.
Since (on the sparse information necessarily available in a posting) the question of where the deceased was domiciled may be open to be resolved, is it legitimate to go “jurisdiction shopping” to see whether there would be more death tax in the UK (and, if so, whether in England or Scotland) or in the Netherlands or in HK?
Julian Cohen, Solicitor
Thanks Paul, yes he did die intestate and the only asset that would need probate would be a UK death grant. There is an outside chance that his father was actually born in England so we are awaiting the outcome of that first!
In practice it sounds likely that you will need to apply for letters of administration in the UK and HK. I imagine that in the Netherlands, assets just pass directly to the two children in equal shares but you will need local advice.
I also suspect that the order is unlikely to matter for the UK and HK and preference should be given to the jurisdiction where the most money is located (particularly if the insurer/pension trustee paying the death benefit is located in one of these to access cash quickly). In the absence of a will, you can presumably run these applications in parallel.
The legal analysis of the succession may be complicated but I would be surprised if the actual answer was anything other than the assets passing to the two children as that will be the position under the local law of all three countries. The only complication may be how the funds passing to the minor are held in the interim (ie under statutory trusts or the Netherlands equivalent) and it is probably a combination of both depending where the respective assets are located.
As Paul said, I don’t think you would need to limit the grant in any way, it is simply that a HK bank may not pay out on the basis of a UK grant - and a Netherlands bank will likely require their own local evidence of title.
Obviously, demonstrating a non-UK domicile could be helpful if IHT is an issue.
Osborne Clarke LLP