New Probate Rules for BVI Company Owners

For shares in a BVI company held personally or via a nominee arrangement, such shares will be effectively frozen upon the passing away of individual shareholders. A BVI grant is required to transfer the deceased shareholder’s shares.

On 1 November 2017, BVI introduced the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017 (New Rules), revoking the old probate rules. From that effective date, all new and pending applications will be subject to the New Rules, irrespective of the date of death.

The New Rules have introduced several changes to the documents and process involved - as outlined below:

Order of grant entitlement

Where a non-BVI domiciled deceased died leaving a will, probate may be granted to the person named as executor in the will according to rule 28(2) if the will is in the English language and is admissible to proof. Such a rule will not apply to any non-English wills, even if an English translation is provided.

For non-English wills, probate may be granted under rule 28(3) to a named person in the will, if the actual wording that is used is sufficient to constitute him as executor. Otherwise, letters of administration with a will annexed should be applied for.

Where a deceased died without leaving a valid will, rule 28(5) outlines that the person entrusted with or entitled to the administration of the estate by the country in which the deceased was last domiciled has the first priority to apply for a grant. This rule however cannot be invoked for applicants relying on a non-domiciled grant. Where there is no person so entrusted, persons who are entitled to benefit from the deceased’s estate under the law of the country in which the deceased was last domiciled will have second priority.

A court appointment is made if the applicant does not satisfy the mentioned two categories.

Declaration of estate value

The fee payable to the BVI court as part of the grant process is determined by the value of the BVI estate (not the deceased's worldwide estate).

Rule 29 explicitly requires the gross value of the BVI estate covered by the grant to be set out. Gross value means the valuation range of the estate without deduction of debts, encumbrances, funeral expenses or death duties.

Filing an estate account

The old rules previously required the applicant to file a statement and account of the administration of the deceased's estate within 12 months from the date of grant. In practice, save for exceptional circumstances, such filing was rarely enforced. The new statutory form now provides the applicant must only render a just and true account of the estate administration whenever required by law to do so.

Form of advertisement

The New Rules have adopted a more standardized approach to the previous requirement of advertisement. Whilst the applicant is still required to advertise the application on not less than two occasions in two weeks in a local BVI newspaper – the information is limited to the name, address and date of death of the deceased and the name and address of the applicant. No other personal information is required to be made public.

New filing fee schedule

An updated fee schedule is provided in Eastern Caribbean Supreme Court (Court Proceedings Fees) (Virgin Islands) Rules, 2017; the amount has increased and the categories of fees have expanded as well.

Conclusion

If you wish to obtain a grant in respect of BVI company shares or other assets as quickly and cheaply as possible, engaging an advisor with experience and good understanding of these New Rules is essential so that the necessary documents are prepared in the correct form and filed with the necessary supporting evidence. The grant application process can take from just a few months to more than a year, depending on whether the application is well prepared. If the application does not address all potential issues in advance, the Registry will send defective notice to ask for additional information and documents. The Registry will not issue a grant unless and until all enquiries have been answered satisfactorily.

Jurisdictions: