Overseas Executors in Cross-Border Estate Administrations

When making a Will in the UK, the testator (the person making a Will) can appoint executors. The role of the executor is to carry out the testator’s wishes in accordance with their Will, and ensure that all of the testator’s assets are collected, and all debts and taxes paid. A testator can appoint multiple executors, but probate will not be granted to more than four.

Although four executors can act in the administration of an estate, having many executors can increase the administrative burden during the estate administration, given that the agreement of all executors will be required where key decisions need to be made. 

To simplify matters during the estate administration, it is possible to obtain a grant of probate in the name of only one or more of the executors, but not all of them, with a power reserved to the others. The other executors will be known as ‘non-proving executors’. Although a non-proving executor does not act during the administration, they are entitled to apply for a grant of probate at a later date, if they wish to do so

Before an application for a grant of probate with power reserved to the other executors can be made, the non-proving executors will need to be notified of the application. Where the testator owned assets only in the UK, matters can be reasonably straightforward.  English law clarifies that a notice can be validly served on a non-proving executor by email, if the recipient of the notice has indicated in writing that they are willing to receive the notice by email.

Matters get more complicated, however, if a non-proving executor lives overseas. In such cases, English law is not the only legal framework that must considered, given that the notice should also be served in accordance with international law and the law of the country in which the non-proving executor resides. 

International Law

Where a country is a signatory state to a treaty, its provisions must be taken into account. We have taken the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (‘the Convention’) as an example. 

The Convention has been phrased widely and provides that judicial and extra judicial documents may be served by any methods accepted under the Convention by judicial officers, officials or other competent persons or any person interested in a proceeding. It is widely accepted that the Convention permits solicitors to serve documents on behalf of their clients. 

To unwrap these provisions a bit further, it is important to consider what constitutes a judicial or an extra judicial document, and who would be permitted to serve such documents on an executor in another jurisdiction.

The organisation of the Hague Convention on Private International Law has provided guidance on the meaning of judicial and extra judicial. Judicial documents have been defined as any document relating to litigation, such as a summons, judgment, application or order. An extra judicial document is any other legal document. This means that a notice to a non-proving executor is covered by the terms of the Convention. 

Further, the Convention provides that it does not interfere with the freedom to send documents by postal channels. It therefore confers a wide discretion on member states to determine whether or not they wish to accept a particular method of service, such as email or any other instantaneous communication methods. It is therefore essential to consider the internal laws of the country where the non-proving executor resides.

Laws of the Country where the Non-Proving Executor Resides

Different countries have different rules which need to be considered when serving a notice on an overseas non-proving executor. The USA can be used to demonstrate the importance of considering the internal laws regarding service of documents.

The USA has not made any objections to a provision in the Convention. When serving a notice on a non-proving executor in the USA, one should consider which methods of service have been accepted, such as email, and which steps must be taken before one is able to serve a document by email for example. 

In many states of the US, the courts have decided that a person serving documents must attempt to send these by the means specified in the Convention. Failing that, permission can be sought from the recipient of a document to send a notice by alternative means of service, such as email. 

How We Can Help

It is worth noting that the interpretation of the Convention in the UK and USA are not wholly dissimilar. Significant differences may crop up when dealing with estates that involve other countries, such as Germany, which has objected to some methods of service specified under the Convention.

Cross-border estate administrations can be inherently complex, and will often involve assets and individuals spread over multiple countries, each country having their own legal framework. Service of notices abroad is merely one of the many issues that may arise in the course of a cross-border administration. 

We are able to advise clients on cross-border estate administrations and help them navigate through the complicated procedures and international treaties that may need to be taken into account in order to avoid issues which may otherwise increase the time and cost of an administration, such as the ineffective service of documents. 

If you have any questions regarding a cross-border probate, please contact the International and Cross-Border team on +44(0) 1225 337599 or at international@stoneking.co.uk, where a member of our team will be delighted to help.