When an individual holding shares in a British Virgin Islands (BVI) entity dies, it falls to the executors or administrators to deal with the assets of the estate. The transfer of the BVI shares can only be undertaken under the authority of a grant or probate or letter of administration issued by the BVI court. Given the popularity of BVI entities for Hong Kong investors, obtaining a grant of probate or letter of administration issued by the Court of the BVI is often the first hurdle to overcome for executors and administrators who are tasked to transmit shares in BVI entities held by deceased shareholders domiciled in Hong Kong.
Applying for a grant in the BVI requires, amongst other documents, an affidavit in respect of Hong Kong law, verifying the validity of the will, the entitlement of the applicant to apply, the domicile of the deceased, and that the distributions contemplated are aligned with Hong Kong law; which is relatively costly to prepare. In our experience, it usually takes four to six months to obtain a grant from the BVI probate registry. The process could be lengthened if there are further requests for documents or information.
It was previously not possible to reseal a grant or letter of administration issued by the Hong Kong Court, but the position has changed since the Probates (Resealing) Act, 2021 (the Act) came in force in the BVI in July 2021. Prior to the Act, the resealing of foreign grant was limited to the United Kingdom, Canada, Australia, New Zealand and the British Overseas Territories. The Act expands the list of jurisdictions to 67 jurisdictions, including Hong Kong.
Once resealed, grants obtained in Hong Kong shall have the same force and effect, and have the same operation in the BVI, as if it were granted by the BVI Court.
The application is to be made by the executors appointed in Hong Kong, and must be supported with the following documents:
- The apostilled grant issued by the Hong Kong Court
- Certified copy of the will of the deceased
- Certified copy of the death certificate of the deceased – such certification to be done by the issuing body
It will not be necessary to file an affidavit on Hong Kong law for a resealing application, and the papers to be filed are:
- Application to reseal grant
- Declaration and account of the estate of the deceased, limited to the property within the BVI
- Affidavit detailing the place of and facts surrounding the execution of the will
- Advertisement published in a BVI newspaper at least seven days prior to the filing of the application; and
- Such other documents/evidence as may be requested by the Registrar of Probates
It usually takes the BVI probate registry about two to three months to reseal a grant, provided that the papers are in order.
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.