The Grant of Probate is a legal process crucial in administrating a deceased person's estate. It provides the necessary authority for the appointed executor to manage and distribute the assets following the deceased's Will. This essay will overview the Grant of Probate in the British Virgin Islands (BVI), exploring its purpose, procedures, and significance in the local legal system.
In 2017, the British Virgin Island ("BVI") repealed its previous probate rules and established new probate rules under the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estate) "New Rule") Rules 2017 that become effective as of November 2017. In essence, the New Rules did not modify any substantial changes; nevertheless, it did modify specific aspects of "grant of probate" in the BVI and to all pending applications on the effective date and new applications made on or after the effective date, irrespective of the date of death.
Purpose of the Grant of Probate
The primary purpose of the Grant of Probate in the BVI is to establish the legal authority of the executor named in the deceased's Will. This document confirms the executor's right to gather the deceased's assets, pay off debts, and distribute the estate's remaining assets to the beneficiaries as the Will stipulates. The Grant of Probate is essential to ensure that the executor's actions follow the deceased's wishes and provide transparency and legal protection throughout the estate administration process.
Background on Grant of Probate
For BVI companies, according to S.245 of the BVI Business Companies Act 2004 (BCA 2004″), shares are assets deemed to be in the BVI. When a shareholder passes away as a natural person, shares held by that shareholder will be frozen. They cannot be validly transferred to the heirs until the Probate Registry issues a Grant. Shares during this process cannot be transferred until the Grant of Probate is issued. As defined in layman's language, a grant of Probate is:
When a deceased passes away and leaves an executed Will regarding their BVI assets, the executor named in the Will applies for a Grant of Probate. Suppose the deceased is not domiciled in the BVI at the time of death. In that case, the application must be accompanied by an affidavit through a local legal practitioner from the country of domicile of the deceased confirming that the Will has been validly executed according to that jurisdiction.
Required Documents for a Grant of Probate
An oath sworn by the applicant
An original or certified copy of the death certificate;
An original or certified copy of the Will, if available.
Affidavit of Foreign Law, if deceased is not domiciled in BVI;
Other certificates:
marriage certificate – if the deceased was married,
birth certificate of the deceased's children or any other relative, if necessary.
Affidavit of Delay, if necessary (after three years since the deceased has passed away.
Advertisement of the Grant of Probate for two (2) consecutive weeks in a local BVI newspaper. (required after application is submitted within the Registry)
All documents must be submitted in English with a certified translation.
Statute of Limitation
According to BVI regulation, no deadline exists to apply for a Grant. Nevertheless, an application brought three (3) years after the deceased's death will require an affidavit supporting the impede. The probate process can take around three (3) to six (6) months from the date of the application and must be filed within the Registry; however, it can be delayed if the deceased passed away in a jurisdiction with a materially different legal system. The Registry issues the Probate once the application has been satisfied and the Grant becomes a public document.
New Rules as of November 2017
The new regulations as of 2017 mention that all non-BVI domiciled deceased who died with BVI shares must:
Order of grant entitlement;
Declaration of estate value;
Filing an estate account;
Form of advertisement; and
New filing fee schedule.
Order of Grant Entitlement
According to Rule 28:
For a non-BVI domiciled deceased who died leaving a Will, Probate may be granted to the person named executor in the Will according to rule 28(2) if the Will is in English and admissible to proof. For wills in languages other than English, rule 28(2) is not applicable even if an English translation of a Will can be provided. For such non-English Wills, whether Probate may be made to a person named to administer the estate depends on the wording used in the Will. If the language describing that person's duties is sufficient to constitute him executor, Probate may be granted to such person under rule 28(3). Otherwise, letters of administration with a will annexed should be applied for.
Declaration of Estate Value
Before the New Rules, there was no specific rule on the declaration of the BVI estate value. Regarding the New Rule 29 set out the gross value of the BVI estate to be covered by the Grant. The gross value is the valuation range of the BVI estate without deducting debts, encumbrances, funeral expenses, or death duties. The value will be categorized in the following ranges:
Below US$50,000
US$50,000 – US$250,000
US$250,001 – US$500,000
US$500,001 – US$1,000,000
US$1,000,001 – US$5,000,000
Over US$5,000,000.
Filing of an Estate Account
Under the previous regulations, the applicant undertook to file in the Registration Office within twelve (12) months from the date of the Grant a statement and account of the administration of the deceased estate. The New Rules form provides that the applicant will render a just and accurate account of the estate administration whenever required by law to do so.
Form of Advertisement
The claimant must advertise the application on not less than two occasions in two weeks in a local BVI newspaper. While this requirement is the same as under the old rules, the information to be included in such an advert is the following:
Name of the claimant
Complete Address
Date of death of the deceased and
the name and address of the applicant. No other personal information is required to be made public.
Beneficial Ownership Register
A grant regarding shares in a BVI entity may require notification and updating regarding the beneficial ownership register of the relevant BVI company. When a deceased shareholder is a beneficial owner of a BVI company for Beneficial Ownership Secure Search System Act 2017, the natural person acting as a personal representative of the deceased's estate Will become the succeeding beneficial owner. The company must notify its BVI registered agent within fifteen (15) days of becoming aware of any beneficial ownership information change, and the registered agent has fifteen (15) days to update its database. If the company fails to comply with the requirement without reasonable cause, it is liable to a fine implemented by the Court.
Conclusion
The Grant of Probate in the BVI serves as a vital legal instrument in establishing estates. It grants the executor the necessary authority to manage and distribute the deceased's assets while safeguarding the beneficiaries' interests. By following the prescribed probate process, the BVI legal system ensures precision, accountability, and the fair execution of the deceased's wishes. Understanding the significance of the Grant of Probate can help individuals navigate the estate administration process effectively in the BVI and provide heirs with the security to receive what has been left in their name.
If you wish to receive more information regarding the Grant of Probate in the BVI, please do not hesitate to contact us at contact@viss.com.hk.
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