British Virgin Islands: Guide To Probating Wills In The British Virgin Islands

Application for grant of probate

1. This application is usually made by the executor named in the will. If some other person is making the application, he must clear off executor. If the executor has died - exhibiting his death certificate or by a written renunciation if the executor does not want to make the application. If the executor is not the applicant, the application will be an application for letters of administration with will annexed and not an application for grant of probate. I will deal with letters of administration with will annexed below.

2. The application for probate must be supported by an affidavit from the executor and this affidavit must exhibit (a) the death certificate of the deceased and the will. The death certificate must either be an original document or a copy certified by a notary public or a British consular officer. If notarized in a noncommonwealth country it must have an apostille attached.

3. The Will must be an original or a court certified copy. The court will not accept a copy of the Will which is certified by notary public or a British consular officer. In some jurisdictions, for example Brazil, the practice is that the testator dictates his will to a notary who records it in his book which is kept at the notary's office. Therefore no original will can be produced. In this case, the court will only accept a certified retyped copy of the will if the affidavit of foreign law makes it clear that certified retyped copy of the will is accepted by the courts in those countries.

4. To be probated in the BVI, the will must cover the BVI estate either directly or indirectly.

Directly - a BVI Will which covers BVI assets or a general will which mentions specific property in the BVI.

Indirectly - where no mention is made of the BVI assets, however, the will contains a residuary clause which covers assets wherever located. If the BVI assets are not covered by the Will, they fall into intestacy and the appropriate application is an application for letters of administration.

5. The following affidavits must also be filed:

(a) Affidavit of value which is usually sworn by the Applicant and provides information regarding the nature and value of the deceased's assets in the BVI. Please note that there is no provision for the payment of estate or inheritance tax in the BVI. However, the court will not act in vain. It will not issue a grant if the there are no assets here or no good reasons for so doing;

(b) Affidavit of attesting witness must be sworn by one of the persons who witnessed the deceased signed his Will and must state that the deceased signed the Will in his presence as well as the presence of the other witnesses;

(c) Affidavit of foreign law must be sworn by an attorney-at -law who is qualified to practise in the place where the deceased died domiciled. The purpose of this affidavit is to state whether the Will was made in conformity with the law of the place where the deceased died domiciled.

(d) Affidavit of translation - All documents that are not in English Language must be duly translated into English. The translator must swear an affidavit certifying that the translation is a true and correct translation of the document.

(e) Affidavit of delay An application for a grant of probate must be made within 3 years from the date when the person died. If it is not made within that period, the Applicant must swear an affidavit explaining the reason for the delay.

The affidavits must be sworn before a Notary Public or a British Consular Officer. If sworn before a Notary Public, it must have an apostille attached. The renunciation must be signed before a notary public or british consular officer, but need not have an apostille.

Application for grant of letters of administration with will annexed

6. As stated earlier, if an executor dies before the application for probate is made or has renounced his right to the grant, the appropriate application to make is an application for grant of letters of administration with will annexed. This application is also appropriate when (a) no executor is appointed by the will, (b) the appointment is void for uncertainty - for example "/ appoint any of my two sons or one of my sisters" or (c) where the executor is incompetent by reason of his minority or mental capacity

7. The applicant for this grant must be (a) any residuary legatee or devisee (the person named in the Will to whom the residue of the estate is left) holding in trust for any other person or (b) any other residuary legatee or devisee.

8. The application must be supported by the same affidavits as for the application for grant of probate.

Application for letters of administration

9. If the deceased dies without a will or his will does not cover the BVI estate, an application for letters of administration must be made. The applicant for the grant is usually the person who the person who is entitled in priority to administer the deceased's estate in accordance with the law of the place where the deceased died domiciled. The affidavit of foreign law is very important in this regard. In the BVI the order of priority is:

(a) Spouse

(b) Legitimate children

(c) Parents

(d) Siblings

(e) Grandparents

(f) Uncles and aunts

(g) In default of any of the above persons to the government

10. If some other person is making the application, he must clear off the person who is entitled in priority, that is, he must show that the person who has a prior right to apply for the grant is not capable of so doing or has renounced his right to the grant in the applicant's favour. If 2 or more persons are entitled to the grant and only one is applying the other person(s) have to renounce their right to the grant. Up to 4 persons can apply for a grant of Letters of administration.

11. Two persons must apply for the grant of letters of administrator if a minority interest or life interest arises on the estate.

12. The application must be supported by the affidavit of the application setting out his entitlement to the grant and exhibiting:

(a) the death certificate of the deceased,

(b) documentary evidence of the relationship between the deceased and the applicant (marriage or birth certificate);

(c) documentary evidence of the relationship between the deceased and any other person who is equally entitled to administer the deceased's estate;

(d) documentary evidence showing the reason why the person who is entitled in priority to the grant is not applying (death certificate or renunciation).

13. These documents must be originals or certified by a notary public or British Consular officer. The application must also be accompanied by:

(a) Affidavit of value

(b) Affidavit of foreign law which must be sworn by an attorney-at-law who is qualified to practise in the place where the deceased died domiciled and must state whether the Applicant is entitled in priority to administer the estate of the deceased in accordance with the law of the deceased's domicile.

(c) Affidavit of translation

(d) Affidavit of delay

Information and documents required

14. The following information is required

(a) whether the deceased died leaving a Will;

(b) date of death of deceased;

(c) address of the deceased;

(d) place where the deceased died;

(e) name of the applicant for the grant; (this person should be the executor(s) named in the Will if deceased died leaving a Will or one or more of the persons entitled to administer the estate of deceased in the country where the deceased died domicile)

(f) names of the surviving spouse and children of deceased,

(g) ages of the deceased's children

(h) the relationship between the deceased and the applicant; and

(i) identity and value of the deceased's estate in the BVI.

(j) name, address and qualification of the attorney at law who will be signing the affidavit of foreign law;

(k) name, address and qualification of the translator

Documents

15. The following documents are usually required to be exhibited to the affidavit in support:

(a) death certificate of deceased;

(b) Will (if there is one covering the BVI estate);

(c) documentary evidence of the relationship between the deceased and the applicant (marriage or birth certificate);

(d) documentary evidence of the relationship between the deceased and any other person who is equally entitled to administer the deceased's estate; and

(e) documentary evidence showing the reason why the person who is entitled in priority to the grant is not applying (death certificate or renunciation).

Resealing

16. It may be possible for a grant of probate (or letters of administration) which has been obtained in a Commonwealth jurisdiction to be resealed by the BVI Court. This application is quite simple.

The application must be made by the executor and advertised in the BVI at least 7 days before the application is made. The application must be supported by an affidavit of the executor stating that the he has obtained a grant from a relevant Court, that the deceased has property in the BVI and that the application was advertised.

17. The following documents must be exhibited to the affidavit:

(a) original Grant of Probate or Letters of Administration;

(b) death certificate of deceased;

(c) Will (if grant of Probate).

Limited Grants

18. The court may make grants which are limited in one way or another. Some of these grants are:

(a) A grant limited until the original will or a more authenticated copy is proved - this is usually made where the original will has been lost destroyed or mislaid and is not available. The applicant must apply to the High Court judge to prove the copy before an application for the grant can be made.

(b) A grant limited until further representation be granted - this is usually made in cases where the executor or person entitled to administer the estate gives a person a power of attorney to apply for the grant on his behalf

(c) A grant limited until a person attains the age of majority - if the person to whom the grant would otherwise be made is a minor.

(d) Grant pending suit - grant may be issued to an applicant pending the determination of a probate claim - persons fighting for who is to appointed.

(e) Grant ad colligenda bona - where the estate of a deceased person is endangered by delay in administering it, the court may grant letters of administration ad colligenda bona for the purpose of preserving the estate. This must be limited until further representation is granted.

Time period within which the grant can be obtained

19. It usually takes between 6 and 8 weeks from filing to receive the grant.

Fees

20. Our standard fee is US$7,500 plus disbursements to apply for and obtain the grant

Additional Application is necessary in some cases

21. A further court application is necessary in cases where the deceased was the sole shareholder and sole director of a BVI company as there are no directors of the company who can receive the Grant, recognize the appointed personal representative as the person having title to the shares of the deceased or register him as the member of the company in his capacity as personal representative of the deceased's estate.

22. In that case, an additional fee of US$2,500 plus disbursements will apply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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