Apostille and Legalisation
Apostille and Legalisation The Hague Convention XII of 5 October 1961, an international treaty of Private International Law abolished the requirement of Legalisation of Foreign Documents, (via Consular offices/ Embassy/ High Commission) and replaced it with the procedure of “Apostille” which consists in applying a Certificate of Apostille. What is an Apostille Apostilles are certificates affixed by Competent Authorities designated by the government of a state which is party to Hague convention. This is often done with prior notarial attestation (attestation by a qualified Notary Public) although it is different in some countries. A list of these competent authorities is maintained by the Hague Conference on Private International Law. Authorised signatories can include embassies, ministries, courts or (local) governments. For example, in the United States, the Secretary of State of each state and his or her deputies are usually competent authorities. Most countries follow a similar pre-requisite procedure of having an authentication by a qualified Notary Public prior to the documents being sent to authorities. In the United Kingdom all apostilles are issued by the Foreign and Commonwealth Office in Milton Keynes. In India, all apostilles are issued by Ministry of External Affairs. Essentially, it is the process of authentication of documents designed for member countries of Hague Convention, inorder to use them abroad. Therefore, the documents issued in a country, that is party to Hague Convention, which have been certified by an Apostille shall be recognised in any other country which is also a party of the Convention, without any other further kind of authentication being required. Fundamentally, if both countries are parties to Hague Convention, an apostille is sufficient to confirm the validity of a document, and removes the need for double certification, by the originating country initially and then by the receiving country. Following countries are currently signatories to Hague Convention: What is Consular Legalisation For countries which have not been part of the Hague Convention of 5th October 1961, documents must be legalised at the Consular Offices/ Embassies / High Commission Offices of the country in which it is executed by parties. Practice followed by countries Although a good number of countries are parties to the said Convention, procedures followed by individual countries are drastically different. Ironically, complications often arise when these countries may still require an Apostille certificate before a consular legalisation. To the contrary, some counties would simply accept documents authenticated by Notary Public, without any further formalities. Essentially, no uniform procedure has been followed in relation to legalisation of documents for use abroad. China and Pakistan (although Pakistan is not a party to Hague convention, they require a certificate issued by FCO) often require both forms of legalisation. However, countries with federal structure or quasi-federal structure appear to be unmethodical with their extant rules. When you have a dream job abroad, you will find the whole process daunting, unless you have someone competent to support you with appropriate advice. For example, United States of America, states follow different procedures. Some states would accept documents authenticated by a Notary Public without any further authentication. India, a quasi-federal nation is another example, where states follow different rules. Regardless of India being a party to Hague Convention, some states still do not recognise or acknowledge the certificate of “Apostille” without having a consular legalisation in place. Most of the states would still require consular legalisation alone, despite India being a party to the International Treaty of Hague Convention. Indian diaspora, being the highest as compared to the countries all over the world, they often find this conundrum quite cumbersome particularly because appointments at the consular offices are often done at the cost of a man-day. The cardinal objective of the aforesaid aspect of Private International Law is simply authentication of signatures/ documents, waiving the requirement of consular legalisation. However, these unmethodical procedures are often viewed as complex when foreign investments and migration are becoming increasingly common and consequently need to be addressed.
Estate administration (foreign assets)
It has become increasingly common for British retirees to live abroad and we can often come across probate matters where foreign assets are involved. The presence of foreign assets can be a complex issue in the process of administration of the estate of the deceased. It can pose complex cross-border issues whether or not a valid Will is in place. If you are dealing with foreign assets in the administration of the estate of the deceased, the following matters are to be considered: The place of domicile of the deceased at the time of death (domicile is a complex technical term to identity the place/country you live in and substantial connection with) Whether the assets include both movable and immovable assets (movable assets are shares,furniture, cars, jewellery, cash in bank and other assets of this nature. Immovable assets are land and buildings) The place where are the executors and personal representatives located. Determination of tax point Is there a lawyer involved in the place assets are situated? Many countries do not have the concept of executors and look to the heirs to deal with the deceased assets. Law of the place where the property is situated governs the validity of dispositions. It is therefore strongly advised to have a foreign qualified lawyer in place to facilitate smooth progression. A non-resident has absolutely no effect on their liability to Inheritance Tax (IHT). This is because the IHT rules look at two factors (a) the domicile of the person and (b) location of the assets. The process can therefore vary on case to case basis depending on the situation. Upon grant, the grant of Probate has to be legalised correctly and often within a specific time period before it can be enforceable abroad. It can either be in the form of an “Apostille” or “Legalisation” by the consular office. An Apostille is a certificate issued by the Department of Foreign Affairs (Foreign commonwealth Office) verifying the genuineness of the signature and/or seal of a public officer on a Grant of Probate and the capacity in which he or she has acted. The Apostille procedure applies in lieu of Legalisation between countries that have signed and ratified or acceded to the Hague Convention of 5 October 1961. The countries in which the Apostille procedure applies may be checked on the Hague Convention website, where a list of countries adhering to the Apostille system abolishing the need for legalisation Legalisation (in some countries spelled ‘Legalization’) is an internationally recognised procedure for certifying the authenticity of official signatures and/or official seal applied to a public document such as Grant of Probate. Still, the verification process is similar; however, it requires the additional Embassy Legalization by the Consular Office of the country in which the document is to be used.