Individual investors and shareholders who are not domiciled in Jersey or the British Virgin Islands (the "BVI") frequently hold movable assets such as shares, bank accounts and investments in their personal capacity. Upon an individual's death, probate may be required to enable their heirs to access these assets. Planning and preparation can help to reduce delay and complication through the probate process at what can be a very difficult time.
A word on domicile:
This guide deals only with the law as applied to those dying domiciled outside of Jersey and the BVI whilst holding Jersey or BVI movable property. An individual's country of domicile is usually the country of their principal residence and the place they consider to be their permanent home. Determining domicile is a complex legal matter and advice should be sought if there is any uncertainty. Domicile is important because the laws of an individual's country of domicile will govern the intestate succession of their worldwide movable estate and can even, on occasion, override the terms of an individual's will where the laws contain forced heirship provisions. Whilst it's not essential for domicile to be stated in a will, it must be recited in the application for probate of the will.
Please click on the headings below to read more:
BVI
BVI probate is governed under the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017 (the "BVI Rules") and the Administration of Small Estates Act, as amended (the "Small Estates Act").
Jersey
Jersey probate is governed under the Probate (Jersey) Law 1998, as amended (the "Jersey Law") and the Probate (General) Rules 1998 (the "Jersey Rules").
BVI
Assets valued under US$25,000 may be released by the asset holder, at their discretion, without the production of a BVI grant, under the small estate procedure.
A grant of probate or a grant of letters of administration (each a "BVI Grant") are required to deal with BVI movable property over US$25,000. Under the BVI Business Companies Act, BVI company shares are deemed to be situated in the BVI and will form part of the BVI movable estate.
Intermeddling
In the BVI, where a person, or a nominee, deals with BVI movable property without the authority of a BVI Grant as an executor or administrator, they can be liable as 'executor de son tort' and given the responsibility of an executor for the consequences of intermeddling. This responsibility may include dealing with breaches of tax or anti-money laundering legislation. BVI registered agents will ordinarily refuse to deal with transfers instructed by those without a BVI Grant.
Jersey
Assets valued under £30,000 may be released by the asset holder without the production of a Jersey grant of probate, at the asset holder's discretion, in respect of a deceased who was not Jersey domiciled. The asset holder may still require a Jersey grant of probate.
All estates with a value of £30,000 or above require a Jersey grant of probate or a grant of letters of administration (each a "Jersey Grant").
Intermeddling
In Jersey, intermeddling is a specific criminal offence under the Jersey Law and is punishable by a fine, imprisonment for 12 months, or both. Intermeddling is defined as either taking possession of or administering part of a movable estate without obtaining a grant of probate. This includes using a bank account after death, but there are exceptions for making arrangements for disposal of the body, or placing the property in safe custody, or preserving it. International banks in Jersey have been fined for intermeddling. Seeking appropriate advice is critical to reduce complexity, delay and risk, particularly where the value of the estate may exceed the threshold.
BVI
Where there is a will, the full application for a grant of probate can be made by an individual named as executor in an English language will. If the will was written in another language, any person whose duties are described sufficiently to identify them as the executor can make an application. If the nominated executor is not available, the court will appoint another person as administrator of the estate under a grant of letters of administration with the will annexed. The court may require further details of the estate, the applicant, and the relationship in order to be satisfied that the individual is suitable. Both executors and administrators are referred to as personal representatives ("PRs").
BVI law requires that a will executed in another country must conform to the law of the testator's domicile at the time of its execution or of the testator's death. If it was executed in the BVI, the necessary formalities are the signatures of the testator and two independent witnesses.
Where the deceased dies without a will (known as dying intestate), the PR appointed by a court in the jurisdiction where the deceased was domiciled at death can apply for a BVI Grant, using a resealed foreign grant, equivalent to a BVI grant of letters of administration. There are 67 jurisdictions from which resealed grants are currently accepted in the BVI listed in the Probates (Resealing) Act, 2021. A BVI Grant will be issued on the basis of the resealed foreign grant.
If there is no foreign grant and first application is being made in the BVI, the court would, in most circumstances, appoint a person beneficially entitled to the estate in the law of the jurisdiction where the deceased died domiciled.
It is not necessary to appoint a lawyer as executor in the BVI; however, it is often prudent to appoint an agent by way of a power of attorney, where the applicant is not in the BVI or does not have experience of its probate procedures. It is important that filings are correct to save on delays, filing costs and financial penalties. Bedell Cristin Executors Limited can attend to probate applications and estate administration on receipt of an indemnity from the PR.
Jersey
Unlike the BVI, Jersey does not have a process for issuing a grant on the basis of 'resealing' a foreign grant. There is, however, a limited fast track process generally available where the deceased was domiciled in the UK, Guernsey or the Isle of Man.
An application for a Jersey grant of probate can be made by the executor named in a valid will. If the executor is unavailable, the court will appoint another person as administrator of the estate under a grant of letters of administration with the will annexed.
If the foreign domiciled individual dies intestate, the court will issue a grant of letters of administration. The person who may make this application is usually the surviving spouse, failing whom, those entitled under customary law, which applies the law of the country of domicile of the deceased.
It is not necessary to appoint a lawyer as executor in a Jersey will; however, personal attendance is required by the PR at the Jersey Probate Registry. If the PR is not physically in Jersey, it is necessary that they appoint an agent by way of a power of attorney to attend in their place. Bedell Cristin Executors Limited acts as attorney for international PRs and attends the Probate Registry two to three times per month.
BVI
The deceased's domicile as at the date of their death will determine the legal succession regime pertaining to the movable estate of the deceased.
Jersey
This is the same as in the BVI in that the deceased's domicile determines the applicable law for the purpose of movable property.
Both Jersey and the BVI have firewall provisions in place, but these only protect movable property placed into trust within the lifetime of a settlor. Trusts set up during a settlor's lifetime will be governed by the applicable Jersey or BVI law, regardless of whether the settlor's country of domicile recognises trusts. Trusts are useful mechanisms for succession planning for those domiciled in countries with forced heirship regimes.
BVI
A PR appointed in the BVI has duties including:
- discovering the BVI assets and worldwide liabilities of the BVI estate;
- calling in the BVI assets;
- settling worldwide liabilities out of the estate, including tax owed; and
- distributing assets to the heirs in the estate in accordance with the will and applicable laws.
Jersey
A PR appointed in Jersey has duties including:
- discovering the Jersey assets and worldwide liabilities of the Jersey estate;
- calling in the Jersey assets;
- settling worldwide liabilities out of the estate, including tax owed; and
- distributing assets to the heirs in the estate in accordance with the will and applicable laws.
Legal ownership of assets in both jurisdictions vests in the PR prior to distribution, except for those which are jointly held with a right of survivorship.
BVI
It is not possible for a will to be varied in the BVI after the death of the testator. If beneficiaries are of age and have capacity, however, they may freely redirect their entitlements.
A beneficiary may disclaim a legacy in a will, which will have the effect that the legacy falls back into the residue of the estate.
Jersey
In contrast to the BVI, it is possible for a will to be varied by the Royal Court within two years of the death of the deceased. This is done with the consent of all parties who should be consulted and with regard only to the interest of the beneficiaries whose interests are affected. A variation usually takes the form of a deed of variation (sometimes known as a deed of family arrangement), which must be sanctioned by the court.
A beneficiary may disclaim a legacy in a will, which will have the effect that the legacy falls back into the residue of the estate.
BVI
While there is no inheritance tax in the BVI, there is a filing fee payable on filing an application for a BVI Grant, which is determined by the gross value of the BVI estate.
There are standard filing fees per document, and an estimate will be given on a case-by-case basis. Each document will cost roughly US$100 to file, and an additional fee will be charged for the declaration of estate value, as follows:
| Declaration of estate value | Additional fee |
| Less than US$10,000 | US$200 |
| US$10,001 - US$50,000 | US$500 |
| US$50,000 - US$250,000 | US$750 |
| US$250,001 - US$500,000 | US$1,000 |
| US$500,001 - US$1,000,000 | US$1,200 |
| US$1,000,001 - US$5,000,000 | US$2,000 |
| More than US$5,000,000 | US$5,000 |
Jersey
There is a fee of £80 for an application for a Jersey Grant, payable to the Jersey Probate Registry.
While there is no inheritance tax applicable in Jersey, stamp duty is also payable to the Jersey Royal Court on an application for a Jersey Grant. This is governed by the Stamp Duties and Fees (Jersey) Law 1998 and is calculated at 0.5% of the value of the estate up to £100,000 (rounded up to the nearest £10,000), and £75 for every additional £10,000 (or part thereof) in value after that. Duty is capped at £100,000, regardless of the estate value.
| Estate value | Stamp duty |
| £0 - £10,000 | £50 |
| £10,000 - £20,000 | £100 |
| £20,000 - £30,000 | £150 |
| £30,000 - £40,000 | £200 |
| £40,000 - £50,000 | £250 |
| £50,000 - £60,000 | £300 |
| £60,000 - £70,000 | £350 |
| £70,000 - £80,000 | £400 |
| £80,000 - £90,000 | £450 |
| £90,000 - £100,000 | £500 |
| £100,000 - £110,000 | £575 |
| £110,000 - £120,000 | £650 |
The costs of engaging a lawyer to represent the PR as an agent in either jurisdiction are subject to change and will be provided on request. Costs are calculated on a time spent basis and vary with the complexity of an estate.
BVI
Depending on whether probate or letters of administration are required, the following documents will be required:
- an oath in standard form to support the application and an undertaking to administer the estate;
- an original death certificate;
- where there is a foreign grant, the resealed foreign grant;
- where there is no foreign grant, but a will, the original will (and any codicils);
- a certificate of search confirming that no other grant has been issued, no other application for a grant has been made and no caveats have been filed;
- an affidavit of foreign law;
- an affidavit of facts, including the place of execution of the will (if any), the deceased's domicile and habitual residence;
- two newspaper notices;
- official translations of any documents not in English, and an affidavit of translation (if applicable);
- any other affidavit (if applicable), such as an affidavit of delay, of due execution of the will, of plight and condition of the will, of alias, and so forth;
- formal renunciation of persons entitled to apply for the administration of the estate who do not wish to apply;
- a declaration of value. This is a declaration of the gross value of the estate prior to all expenses, including funeral expenses. No evidence of value is required. However, the declaration should be founded in fact and made in good faith; and
- a draft order and grant.
Jersey
Depending on whether probate or letters of administration are required, the following documents will be required:
- an oath in standard form to support the application and an undertaking to administer the estate;
- an original or certified copy death certificate;
- official translations of any documents not in English;
- where there is a will, the original will (and any codicils) OR duly authenticated copies of the will and probate from the authority having custody of the original will;
- where there is no will, either a probate equivalent (such as a UAE Succession Certificate of French Inheritance Deed prepared by a Notaire) OR an affidavit from a lawyer in the jurisdiction where the deceased died domiciled as to the person entitled to administer the deceased's estate;
- copies of wills and probates in relation to other jurisdictions;
- any other affidavit (if applicable) such as an affidavit of due execution of the will, of plight and condition of the will, of alias, and so forth;
- formal renunciation of persons entitled to apply for the administration of the estate who do not wish to apply; and
- probate valuation as at date of death of the Jersey assets. This may be in the form of a letter or document from the holder of the assets or professional valuations stating the value.
BVI
An application should be made within three years of the date of death, and if this is not done, then an affidavit must be filed by a lawyer from the deceased's country of domicile, giving reasons for the delay. An application must be accompanied by a declaration of the gross value of the estate in the BVI.
From the time of submission of the completed application, it can take from two to six months for the grant to be issued, and this can be longer if there are complexities.
Jersey
There is no timeframe within which an application for probate must be made. Once the application has been made, the PR must then attend court (in person or by attorney) to take an oath as to the authenticity and accuracy of the documents and promise to lawfully administer the deceased's Jersey assets.
The grant should be issued within two to three weeks from the court attendance, unless there are complexities in the estate.
BVI
The application must be advertised once a week for not less than two weeks in a local newspaper.
A BVI Grant, once issued, will be a document of public record and the estate ownership and potential succession as to the BVI property of the deceased will become publicly available.
No estate account is filed automatically unless the PR is required by law to do so.
Jersey
A probated will becomes a matter of public record and any person can request a copy, although the probate registry may ask the reasons for the request.
Any person beneficially interested in the estate of a deceased person can require the executor to render an account on oath; however, there is no oversight directly by the probate registry of the due administration of the estate, and an estate account is not filed.
Conclusion
While the legal concepts of probate in BVI and Jersey are broadly similar, there are key differences as to timeframe, expense and ease of access.
Obtaining a BVI Grant has become an expensive exercise following the introduction of the BVI Rules in 2017. In addition to the filing fees required on a per document basis, practical costs such as courier fees and long-distance calls will mount up for an individual seeking to administer a BVI estate remotely. The BVI Probate Registry will issue defective notices if further information is required, and a matter can stretch from a few months to over a year if an inaccurate application is made.
A Jersey Grant is much simpler to obtain, and a full application has historically been made much more frequently as Jersey's fast-track procedure was limited in scope (certainly compared with the BVI's resealing process) and was, until 2023, required for all estates with a value above £10,000. Since the threshold was increased from £10,000 to £30,000 on 27 October 2023 by the Probate (Amendment) (Jersey) Law 2023, we expect to see a larger volume of estates administered without the need for an application.
We advise clients to be forward thinking about their private assets in the BVI and Jersey. Please contact us if you would like a confidential discussion.
