Q&A INTESTACY LAWS
Establishing heirs
The complexities of the laws that apply if a client
dies abroad without making a will and leaves an estate
that includes fixed assets in a number of countries are
unravelled by our panel of experts this month
Which laws of intestacy
apply – and how are they
applied – if an expat dies
intestate in a foreign country
and has estate including
fixed assets in several.
For example, a client domiciled
in Scotland with:
George Berg, legal manager,
Norwich Union International
As the client is domiciled
in Scotland and has residential
property there,
their heirs will presumably
apply for a Grant of
Representation (Confirmation)
there. Such a grant
should also be fine for
other UK assets, such as
the life policy.
In Scotland, the law of
succession for real property
is governed by the law
of the country in which
the property is situated.
Succession laws are different
in each jurisdictions
and therein lays the difficulty
in this case.
Clients with assets in
different jurisdictions
should not only have a
valid will in their country
of domicile but also for
■ Investment property in
Thailand.
■ Investment property in
Spain.
■ Residential property,
intended to be ultimate
home, in Scotland.
■ An Isle of Man-based
each country in which they
have significant assets. So
this client might have a
Scottish will stating what
they want to happen to
their worldwide assets, and
then one in every other
jurisdiction stating that his
assets in that country
should (subject to local
succession laws) pass in
accordance with his
Scottish will.
If there is no will, then
the heirs will have to
proceed according to the
local intestacy laws in
each country.
Gerry Brown, head of trusts
and taxation, Prudential
International
This is an exceedingly complex
problem. In Scotland,
individuals are not free to
leave their estate to who-
personal portfolio bond.
■ A substantial bank balance
in Jersey.
■ Life assurance (not in
trust) based in the UK.
John Sands, John Jenner
International, Bangkok
ever they choose – there is
an element of ‘forced heirship’,
commonly known as
legal rights. But claims to
the estate can be made only
by a surviving spouse/civil
partner and children.
Claims are also restricted
to ‘moveable’ estate.
Generally, land and buildings
cannot be the subject
of a legal rights claim.
The rules on the distribution
of intestate estates
are set out in the Succession
(Scotland) Act 1964.
1) ‘Prior’ rights of a surviving
spouse/civil partner:
■ a right to the deceased’s
dwelling house up to a
value of £300,000;
■ a right to furniture and
household contents up
to a value of £24,000;
■ a cash right to a value of
£42,000, rising to £75,000
if there are no surviving
children.
2) Legal rights, as mentioned
above.
3) The remainder is divided
among family members
according to formulae.
With effect from 4 May,
2006, a surviving co-habitant
may seek an award
from the estate.
OCTOBER 2008 [www.international-adviser.com] INTERNATIONAL ADVISER
technical
Julie Hutchison, head of
estate planning, Standard
Life International
The key starting point is
that the client was domiciled
in Scotland when
they died. Since the client
died without a will, the
conclusion that flows from
this is that the Scots law
rules of intestate succession
will generally govern
what happens to the moveable
estate – that is, everything
other than bricks
and mortar.
On the other hand, succession
to heritable property
– that is, land and
buildings – generally follows
the law of the country
in which it is situated. So
more than one jurisdiction
could come in here
depending on the location
of the client’s houses.
If you have a question for
the tax panel, please email
dan.judge@lastwordmedia.com
The opinions expressed are those of the
author/panel. The material is for general
information only and does not constitute
investment, tax, legal or other form of advice.
You should not rely on this information to
make (or refrain from making) any decisions.
Always obtain independent, professional
advice for your own particular situation.
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