Signed, Sealed, Re-Sealed: Managing Estates Across Borders

Introduction

In today's world, it is common for individuals to live, work, and invest across borders. Many Nigerians, like others from developing countries, migrate in search of career opportunities and improved living standards. Over time, they buy homes, open bank accounts, run businesses, and build other assets abroad, while still maintaining property and investments in Nigeria.

To protect these assets and provide for loved ones, such individuals turn to estate planning tools such as wills and trusts. These tools ensure that assets are properly managed and distributed after death. However, difficulties often arise when beneficiaries try to claim rights over assets located in different countries. These difficulties are more pronounced when the will or trust was prepared under foreign law, without a clear process for recognition or enforcement in another jurisdiction.

This article provides a practical guide for individuals, families, and beneficiaries with assets spread across Nigeria and other jurisdictions. It explains how estate administration works in such cross border situations and outlines the legal steps that can help both to prevent complications in advance and to ensure a smooth transfer of property.

Probate Grant, Estate Administration and Trusts for Assets in Nigeria

In Nigeria, the distribution of a deceased person's assets is guided by several laws, including the Wills Act, the Administration of Estates Laws of different States, the High Court Civil Procedure Rules of different States, and the Probate (Re-Sealing) Act. The process depends on whether the deceased left a valid will (testate) or not (intestate).

• Where there is a will (testate): The individuals appointed as executors under the will must apply to the court for a grant of probate. This grant confers legal authority on them to manage/administer and distribute the estate according to the instructions in the will.
• Where there is no will (intestate): The next-of-kin or other persons entitled by law, based on their place in the hierarchy of entitlement, may apply for a grant of letters of administration.¹ This document empowers them to manage and distribute the estate in line with Nigerian succession laws.²
• Where a trust exists: The appointed trustees will continue to manage the trust property as provided in the trust document. However, if the deceased also owned assets outside the trust, the trustees may need to apply for probate or letters of administration to cover those additional assets.

Probate Grant, Estate Administration, and Trusts for Cross-Border Assets³

When a person owns assets in more than one country, managing the estate after their passing is more complex. The key challenge is making sure that the will or trust is recognized under the laws of each country where assets are located. In Nigeria, the treatment of foreign wills and probate grants depends on whether they come from a Commonwealth country or a non-Commonwealth country.

Recognition of Foreign Wills and Grants in Nigeria

A will prepared abroad is generally valid in Nigeria if it was executed in line with the laws of the country where it was made, or where the individual was living permanently (domiciled), usually residing (habitually resident), or a national at the time of death. The Probate (Re-Sealing) Act provides the framework for recognizing foreign wills and probate grants.⁴

1. Foreign Wills from Commonwealth Countries (e.g., United Kingdom): Under Section 1 of the Probate (Re-Sealing) Act, where a person dies testate in a Commonwealth country and probate has already been granted there, that probate can be re-sealed in Nigeria.⁵ For instance, if the deceased owned assets in both the UK and Nigeria and probate was granted in the UK, the executor can apply to have the UK probate re-sealed in Nigeria. Once re sealed, the probate has the same effect as if it was issued by a Nigerian court, giving the executor authority to manage the Nigerian assets. It is important to note, however, that re sealing must be carried out in the state where the assets are located. If assets are spread across multiple states, separate applications are required in each state's High Court.⁶
2. Wills and Probate from Non-Commonwealth Countries (e.g., United States): The Probate (Re-Sealing) Act does not apply to non-Commonwealth countries. This means that a probate grant from the U.S. has no automatic effect in Nigeria.⁷ Executors or beneficiaries must apply directly to a Nigerian probate court for probate (if there is a will) or for letters of administration (if there is no will). These applications are usually filed in the High Court of the state where the Nigerian assets are located and must be supported by documents such as the U.S. death certificate, a copy of the will, and proof of the applicant's legal interest in the estate.⁸

Key Point for Families: For Nigerian assets, probate grants from Commonwealth countries (like the UK) can be re-sealed, which makes the process more straightforward. However, probate grants from non-Commonwealth countries (like the U.S.) require starting a fresh probate process in Nigeria. Families should plan for this additional step when estates include both Nigerian and U.S. assets.

Recognition of Foreign Trusts in Nigeria

Nigeria does not have a single, comprehensive trust statute. Instead, the principle of lex situs (the law of the place where the property is located) applies under private international law. This means that if a foreign trust—whether from the U.S. or the U.K.—involves assets located in Nigeria, such as bank accounts or real estate, Nigerian law will govern those assets. Nigerian courts do not automatically recognize foreign trust instruments over assets held in Nigeria, unless the trust has been domesticated or recognized under Nigerian law.⁹

As a result, even if the trust is valid abroad, it cannot, on its own, authorize trustees to manage Nigerian assets. A formal probate process will still be required:

• If there is a will mentioning the trust: The executors must apply for a grant of probate.
• If there is no will or the will is silent on the trust: The relevant party must apply for letters of administration.

In such cases, the foreign trust document may support the application in Nigeria, but it cannot by itself empower trustees or executors to withdraw or transfer assets from Nigerian financial institutions.

It is also important to note that where a trust was created in Nigeria, but the assets were still legally held in the deceased's personal name (rather than in the name of the trust), those assets will form part of the deceased's estate. The trustee cannot access or administer them without first obtaining authority from the Nigerian probate court. In practice, this may require the trustee to work with the executors named in the will, or to apply directly to be appointed as administrator in Nigeria.

Strategic Insights for Managing Cross-Border Assets

To ensure smooth administration of estates and effective distribution of assets across Nigeria and foreign jurisdictions, the following steps are recommended:

1. Understand the Laws in Each Country: Gain a clear understanding of probate and inheritance rules in Nigeria and in any foreign jurisdictions where assets are located.
2. Prepare Separate Wills Where Necessary: Where assets are held in Nigeria and abroad, it may be advisable to prepare a separate Nigerian will—particularly if the foreign jurisdiction is outside the Commonwealth—to avoid delays or conflicting procedures.
3. Coordinate Executors and Trustees: Proper coordination between executors and trustees is essential to prevent disputes and ensure efficient administration.
4. Plan for Tax Obligations: Consider inheritance and estate tax requirements in each jurisdiction to minimize liabilities and support effective planning.
5. Keep Estate Plans Updated: Wills, trusts, and related documents should be reviewed and updated regularly to reflect changes in assets, family circumstances, or applicable laws.
6. Maintain a Clear Asset Register: An updated inventory of assets and their locations help executors or trustees manage the estate more effectively.
7. Anticipate Succession Challenges: Potential cross-border succession issues should be identified and addressed in advance with appropriate legal advice.

Key Point: A well-structured estate plan that accounts for cross-border complexities promotes smoother administration, reduces costs, and ensures that assets are distributed in line with the testator's wishes.

Conclusion

Administering estates across multiple jurisdictions presents unique challenges, particularly where assets are held in both Nigeria and abroad. Nigerian law permits the re-sealing of probate grants from Commonwealth countries but requires fresh probate applications for non-Commonwealth jurisdictions. Foreign trusts are also not automatically recognized and must go through formal probate procedures before Nigerian assets can be accessed. A clear understanding of these rules is vital for effective estate planning and for safeguarding the rights of beneficiaries. For further clarification on cross-border estate administration, please contact Funmilola Mesaiyete – lola.mesaiyete@scp-law.com and Oluwaseyi Adebayo – oluwaseyi.adebayo@scp-law.com.

Footnotes

1 Section 49 of the Administration of Estates Law of Lagos State.

2 Order 61 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2019.

3 Cross-border assets refer to assets that are located in more than one jurisdiction, typically spanning different countries. These assets can include real estate, bank accounts, investments, businesses, intellectual property, or other types of property.

4 Section 1 of the Probate (Re-Sealing) Act, 1966

5 Ibid

6 Section 6 of the Probate (Re-sealing) Act, 1966

7 Section 8 of the Probate (Re-Sealing) Act, 1966

8 Order 61 Rule 8 of the Lagos State high Court (Civil Procedure) Rules, 2019.

9 Pranjali Pandya, Rule of Lex Situs – under Private International Law, https://lawcolumn.in/rule-of-lex-situs-under private-international-law/, (Accessed on June 3rd, 2025)

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.