It is not unusual these days for people to have property and assets abroad and sometimes live there, and sometimes die there. In the circumstances where a deceased person has made a Will leaving a legacy to charity, the charity will obviously want to receive payment but how does a charity do this? This article will provide some advice on this subject.
How does a charity receive payment of a legacy made by someone who was living abroad?
If the deceased person was still ‘domiciled’ in England, then English laws will govern the administration of their estate and the charity can look forward to payment by the executors when they administer the estate. But if the deceased person was domiciled abroad, it is not always so straight forward. So a very important question is:
Everyone acquires a domicile of origin at birth. This is usually the same as the domicile at that time of their father, that is, the country that their father considered to be his permanent home at the date of the person’s birth. If their parents were not married when they were born, they will take their domicile from their mother. If they were adopted, they take domicile from their adopted father – if there is no adopted father, they take domicile from their adopted mother.
It is very difficult to displace domicile of origin. Indeed, a person’s domicile of origin is retained permanently, unless it is superseded by a domicile of dependence or a domicile of choice. Their domicile of origin also returns if they acquire a domicile of choice which then ceases but they have not yet made a new domicile of choice.
Until they reach the age of 16, their domicile follows that of the person on whom they are legally dependent – if that person changes their domicile (through choice) then theirs will also change. This is called ‘domicile of dependence’.
If they are were married before 1st January 1974, the wife would automatically acquire the domicile of her husband.
‘Domicile of choice’ – From the age of 16 (earlier in Scotland), an individual may be able to acquire a new domicile. This is called a domicile of choice. In order to acquire a domicile of choice, a person must demonstrate the following:
- They have settled permanently in the country in which they now consider themselves domiciled; and
- They must intend to stay there for the rest of their life.
They don’t necessarily have to become a citizen or passport holder of that country but these factors will be taken into account.
So if someone dies while having a foreign domicile, the laws of that country will govern the administration of that person’s deceased estate.
Property and assets owned abroad
If someone owns property and assets abroad, it is often best to have a foreign Will to deal with the property and assets when they pass away (as well as an English Will to deal with property and assets in this country – see here). The foreign Will should be drawn up by a relevant overseas lawyer, but can be executed in this country in the presence of an English Notary, so that it meets the requirements of the foreign jurisdiction.
Provided the gift to the charity in the deceased person’s Will is valid according to the law of the deceased’s domicile, the charity is entitled to payment of the legacy. But there may be more required than waiting for the executors to administer the deceased person’s estate.
Notary public services
I am a Notary and am regularly called upon to Notarise documents for use abroad.
I was recently called upon by a substantial English charity to help prepare and Notarise documentation required by lawyers in Spain who were administering the estate of someone born in England, but living in Spain at the date of his death and who had left a substantial legacy to the charity in his Will.
I had to investigate and provide a certificate regarding the Charity:
- That it is an English Company and Charity and confirm its registered number;
- Its date of incorporation;
- That it was incorporated and remains a Private company limited by guarantee without share capital;
- The identity of its registered Company Secretary;
- That it’s registered; and
- That it has its Tax domicile is UK.
One of the Charity’s Directors had to execute, before me, and have Notarised by me, a Power of Attorney (in Spanish and English) on behalf of the Charity appointing the Spanish lawyers as attorneys to obtain and receive the legacy on behalf of the Charity and do all that was required in accordance with Spanish law.
The Spanish lawyers required to receive my Notarial act document called ‘Acts De Manifestaciones’ (which they translated as ‘Minutes of Demonstrations’), in Spanish and English, in which I certified that the Director had come before me and confirmed on behalf of the Charity its status, address, VAT number, date of incorporation, and company number, its objects, his position as Director, who controlled the Charity, the names and addresses and the passport numbers of the Charity’s Board members.
All the documents I Notarised then had to be sent to the Foreign & Commonwealth Office for it to add its ‘Apostille’ stamp onto each, before onwards delivery to Spain.
The good news is that it may have been quite a job, but the English Charity was able to collect a substantial legacy from the Deceased Person’s estate.
How we can help
At Nelsons, we provide Notary Public services through Martin Jinks, Partner, who is regulated by The Faculty Office of the Archbishop of Canterbury.