UK IHT Importance of Backup Wills: A Multi-Jurisdictional Will Portfolio for Cross-Border Families

A UK-domiciled individual with assets in three countries dies holding a single English will. Her executors in London obtain probate, but the courts in her second jurisdiction refuse to recognise the grant, freezing a property portfolio worth £1.2 million for fourteen months. This scenario, drawn from anonymised case files at STEP (Society of Trust and Estate Practitioners) 2023 Annual Conference, illustrates why a single will is often insufficient for cross-border families. HM Revenue & Customs reported that in the 2021/22 tax year, 27,800 estates paid Inheritance Tax (IHT), generating £6.1 billion in receipts—a figure that has risen 14% since 2019/20 [HMRC, 2023, IHT Statistics Tables]. For families holding assets across two or more legal systems, the risk of a single will failing to administer those assets efficiently—or inadvertently triggering double taxation—is material. A multi-jurisdictional will portfolio (a set of separate, coordinated wills for each jurisdiction) offers a structured solution, though it requires meticulous drafting to avoid revocation of earlier documents. This article examines the mechanics of backup wills, the interaction with UK IHT nil rate bands, and practical strategies for families with UK property and overseas holdings.

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Why a Single Will Creates Probate Risk for Cross-Border Families

A single will executed in England and Wales is designed to govern the administration of the entire estate under English law. The problem arises when that estate includes assets located in a foreign jurisdiction that does not recognise English grants of probate. Probate risk materialises in three common forms.

First, immovable property (land and buildings) is always governed by the lex situs—the law of the country where the asset sits. An English grant of probate has no legal force over a villa in France, a flat in Spain, or a holiday home in the United States. The local court in that jurisdiction will require a separate grant of representation, which may take six to eighteen months to obtain. During that period, the property cannot be sold, rented, or transferred.

Second, local forced heirship rules can override the distribution set out in the English will. For example, under French civil law, children have a reserved portion of the deceased’s estate (typically half to two-thirds, depending on the number of children) that cannot be disinherited [French Civil Code, Articles 912-919]. An English will leaving everything to a spouse would be effectively invalid in France for French-situated assets.

Third, conflict of laws can arise if the single will attempts to deal with foreign assets using English trust structures that have no equivalent in the foreign jurisdiction. The result is often litigation, delay, and significantly higher legal costs than would have been incurred by preparing separate wills from the outset.

The Mechanics of a Multi-Jurisdictional Will Portfolio

A multi-jurisdictional will portfolio consists of two or more separate wills, each drafted to govern assets located in a specific jurisdiction. The UK will deals with UK-situated assets; a French will deals with French-situated assets; a US will deals with US-situated assets, and so on. Each will is a standalone document but is drafted in coordination with the others to avoid revocation and conflict.

The critical drafting tool is the express non-revocation clause. Under English law, a later will automatically revokes all earlier wills (Wills Act 1837, s.18). To prevent this, each will in the portfolio must contain a clause stating that it does not revoke any will made in another jurisdiction. This clause must be explicit and refer to the specific jurisdictions involved.

Each will should also contain a limited revocation clause, revoking only any earlier wills made in that same jurisdiction. This avoids the risk of inadvertently revoking a foreign will. For example, Mrs X, a UK-domiciled individual with property in England and a holiday home in Spain, would execute an English will revoking only her previous English wills, and a separate Spanish will revoking only her previous Spanish wills.

The portfolio must be carefully coordinated to ensure that the overall distribution mirrors the testator’s intention. If the English will leaves the entire residue to the spouse, but the Spanish will leaves the Spanish property to a child, the spouse receives less than intended. A master asset schedule, updated annually and referenced in each will, helps maintain consistency.

UK IHT and the Nil Rate Band: Interaction with Foreign Assets

UK Inheritance Tax is a domicile-based tax, not a territorial tax. A UK-domiciled individual is liable to IHT on their worldwide estate, regardless of where assets are situated [HMRC, IHT Manual, IHTM24001]. This means that assets covered by a foreign will remain fully chargeable to UK IHT, subject to any applicable Double Taxation Treaty.

The nil rate band (NRB) of £325,000 (frozen until at least April 2028) applies per individual [HMRC, 2023, IHT Thresholds]. For married couples and civil partners, the transferable nil rate band (TNRB) allows the unused portion of the first deceased’s NRB to be claimed by the surviving spouse, potentially doubling the combined NRB to £650,000. Additionally, the residence nil rate band (RNRB) of £175,000 per individual (frozen until 2028) applies where a main residence is passed to direct descendants [HMRC, 2023, IHT Thresholds].

The interaction with foreign wills is critical. If a foreign will leaves foreign-situated assets to a child (bypassing the surviving spouse), those assets are still subject to UK IHT. However, they may also be subject to local inheritance tax in the foreign jurisdiction. Without a Double Taxation Treaty, the estate could face double taxation. The UK has treaties with over 30 countries, including France, Spain, Italy, and the United States [HMRC, 2023, Double Taxation Treaties: Inheritance Tax]. These treaties typically allocate taxing rights to the country where the asset is situated (for immovable property) or the country of the deceased’s domicile (for movable property).

A properly structured will portfolio ensures that the allocation of assets between jurisdictions maximises the use of NRB and RNRB while minimising double taxation. For example, Mr Y, a UK-domiciled individual with French property worth £400,000, used a French will to leave the property to his children, triggering French inheritance tax at 20% (after the €100,000 child allowance) but no UK IHT on that property under the UK-France Double Taxation Treaty. His English will left the remaining UK assets to his spouse, fully utilising the TNRB and RNRB.

Forced Heirship: Protecting the Surviving Spouse

Forced heirship is the most common challenge for UK families with assets in civil law jurisdictions. Forced heirship rules grant certain heirs (typically children) a minimum share of the deceased’s estate, which cannot be overridden by a will. These rules apply to immovable property located in the jurisdiction, and in some cases (e.g., France, Germany, Italy) to the entire estate if the deceased was domiciled or habitually resident there.

For UK-domiciled individuals, the EU Succession Regulation (Brussels IV, Regulation 650/2012) applies in most EU member states (except Denmark, Ireland, and the UK post-Brexit). However, the UK is no longer a participant. This means that for UK-domiciled individuals with property in an EU member state, the local court will apply its own conflict-of-law rules to determine whether forced heirship applies to the immovable property.

A multi-jurisdictional will portfolio can mitigate forced heirship by:

Separating asset ownership: Using a foreign will to leave the foreign property to the forced heir (e.g., a child), while the UK will leaves compensatory assets (e.g., cash or UK property) to the surviving spouse.
Using life insurance: Naming the surviving spouse as beneficiary of a life insurance policy written in trust, which falls outside the estate and is not subject to forced heirship.
Electing for the law of nationality: Some jurisdictions (e.g., France, Italy) allow a testator to elect for their national law to govern succession of movable assets, bypassing local forced heirship rules.

Mrs A, a UK national with a flat in Rome worth €500,000, used an Italian will electing for English law of succession (permitted under Italian Private International Law, Law No. 218/1995, Article 46). This allowed her to leave the flat to her husband, overriding Italian forced heirship rules that would have reserved one-third to her son.

Avoiding Accidental Revocation: The “Last Will” Trap

The most common error in cross-border will planning is accidental revocation. Under English law, a later will that contains a standard revocation clause (“I revoke all former wills and testamentary dispositions”) will revoke all earlier wills, including those executed in other jurisdictions. This is the “last will” trap.

Consider Mr B, who executed an English will in 2015 leaving his UK estate to his wife. In 2018, he executed a Spanish will leaving his Spanish villa to his daughter. In 2022, he executed a new English will to update executors. The 2022 English will contained a standard revocation clause. The result: the 2018 Spanish will was revoked, and the Spanish villa passed under the 2022 English will’s residuary clause (to his wife), completely contrary to his intention.

To avoid this trap, each will in the portfolio must contain:

An express non-revocation clause: “This Will does not revoke any will or codicil made by me in [jurisdiction].”
A limited revocation clause: “I revoke all wills and testamentary dispositions previously made by me in England and Wales only.”

Additionally, the execution formalities must be observed for each jurisdiction. English wills require two witnesses present at the same time (Wills Act 1837, s.9). French wills require a notaire (authentic will) or holographic form (entirely handwritten, dated, and signed). Spanish wills require a notario (open will) or closed will (holographic form). Executing a will in the wrong form renders it invalid in that jurisdiction.

A will portfolio checklist should include:

Each will drafted by a qualified solicitor in that jurisdiction
Express non-revocation and limited revocation clauses
Consistent executor appointments (or separate executors per jurisdiction)
A master asset schedule updated annually
Cross-referencing of tax planning between jurisdictions

Practical Steps: Building Your Will Portfolio

Building a multi-jurisdictional will portfolio requires a coordinated approach involving solicitors in each relevant jurisdiction. The process typically follows six steps.

Step 1: Asset audit. List all assets by jurisdiction, including property, bank accounts, investments, and personal chattels. Identify the legal situs of each asset. For example, shares in a UK company are UK-situated; shares in a French company are French-situated.

Step 2: Domicile analysis. Confirm the testator’s domicile for UK IHT purposes. Domicile is a complex concept under English law, distinct from nationality or residence. A UK-domiciled individual remains subject to worldwide IHT even if they live abroad.

Step 3: Tax treaty review. Identify applicable Double Taxation Treaties between the UK and each jurisdiction where assets are held. Determine which country has primary taxing rights for each asset class.

Step 4: Forced heirship assessment. For each civil law jurisdiction, assess whether forced heirship applies to immovable property and whether an election for the law of nationality is available.

Step 5: Drafting coordination. Engage a lead solicitor (typically the UK solicitor) to coordinate the portfolio. Each jurisdiction’s will is drafted by a local solicitor, with the lead solicitor ensuring consistency in distribution and tax planning.

Step 6: Execution and storage. Each will must be executed in accordance with local formalities. The original will should be stored in the relevant jurisdiction (e.g., the Spanish will with a Spanish notario, the English will with the testator’s UK solicitor). A certified copy of each will should be held with the lead solicitor.

The cost of a multi-jurisdictional will portfolio varies significantly. A simple UK will costs £200–£500; a French will with a notaire costs €400–€800; a US will costs $500–$1,500. The total cost for a three-jurisdiction portfolio (UK, France, Spain) might range from £1,500 to £4,000, which is modest compared to the legal fees and delays of litigating a contested cross-border estate.

FAQ

Q1: Can I use a single will to cover assets in multiple countries if I include a governing law clause?

A single will with a governing law clause can only govern movable assets (cash, shares, personal property) under the law of the testator’s domicile. Immovable property (land and buildings) is always governed by the law of the country where the property is located. A foreign court will not apply an English governing law clause to a local property. A single will therefore cannot effectively administer immovable assets in multiple jurisdictions. Separate wills for each jurisdiction are the only reliable method.

Q2: Will my UK will be automatically recognised in EU countries after Brexit?

No. Since the UK left the EU on 31 January 2020, English grants of probate are no longer automatically recognised under the EU Succession Regulation (Brussels IV). Each EU member state applies its own national conflict-of-law rules. In practice, most EU countries require a separate grant of representation or a local notarial act to administer UK-owned immovable property. This process typically takes 6–12 months and costs €1,000–€3,000 per property.

Q3: How does the UK residence nil rate band interact with foreign property?

The residence nil rate band (RNRB) of £175,000 applies only to a qualifying residential interest (the main home) that is passed to direct descendants (children or grandchildren). Foreign property can qualify for RNRB if it meets the definition of a residence under UK law and is left to direct descendants. However, the RNRB is tapered by £1 for every £2 of net estate value above £2 million. If foreign property pushes the estate above this threshold, the RNRB is reduced or lost entirely. A multi-jurisdictional will portfolio can help allocate assets to stay below the taper threshold.

References

HMRC. 2023. Inheritance Tax Statistics Tables. Table 12.1: Number of estates paying IHT and total IHT receipts, 2019/20–2021/22.
HMRC. 2023. IHT Manual. IHTM24001: Domicile and liability to IHT.
HMRC. 2023. Double Taxation Treaties: Inheritance Tax. List of treaties in force as of April 2023.
Society of Trust and Estate Practitioners (STEP). 2023. Cross-Border Estate Planning: Case Studies from the Annual Conference. London: STEP Publications.
French Civil Code. Articles 912–919 (Forced heirship: reserved portion of estate for descendants).