by Lucas Spaeth, ABM consulting attorney

 

When a Ugandan who has never lived outside of Uganda dies, inheritance issues are relatively simple. Ugandan law dictates that succession is controlled by his or her will; or, if none, then by the law of intestate succession.  However, complicated jurisdictional issues can arise when the decedent owned property or did business in several different countries, or when it is unclear which country he considered to be his “home.” This article will attempt to clarify some of these issues.

 

What is Domicile?

 

A domicile is the jurisdiction where a person has their “fixed habitation.” This would be a simple consideration, except for the fact that many people in the modern world live transient lives, and do not always have a “fixed habitation.” Therefore, each country has a test for deciding domicile. A person can only have one domicile. A person retains their place of domicile until a new one is established. For example, imagine a woman was born and raised in Switzerland, but she leaves the country and travels the world for fifty years, never settling in one place for long. She eventually dies in Uganda. What is her domicile at her death? The answer is Switzerland. Disregard the fact that she may not have set foot in Switzerland for fifty years; until a person obtains a new domicile, they retain their old one.


In Uganda, a person is born with the domicile of his or her father. However, if they were born to unmarried parents, they have the domicile of their mother. A married woman has the domicile of her husband. A foreigner who moves to Uganda only acquires a Ugandan domicile if he “takes up his fixed habitation” in Uganda. This does not include people who only come to Uganda just to work, regardless of how long they stay. There must be evidence that they intend Uganda to be their fixed residence.

Ugandan succession law states that a foreigner may be considered to have Ugandan domicile if they have their ordinary residence in Uganda for at least two years AND they have a surviving spouse or child who is ordinarily resident in Uganda at the time of death. This is a minimum test of domicile, and there are other factors to be considered as well.


Movable Property vs. Immovable Property

 

Generally, immovable property simply means land and improvements to land (buildings, structures). The location of immovable property is [usually] easy to determine. Movable property means everything else (cars, money, securities, furniture). In legal theory, movable property is located in the same space (or within the same jurisdiction) as its owner. For purposes of succession, movable property is subject to the law of the owner’s domicile at death.

 

Example of What Happens when a non-Ugandan Dies Leaving Property in Uganda

 

So let’s pretend that an American lives in Uganda for five years, buys two pieces of land and acquires a business interest in a Ugandan company. The American also owned real property and business interests in the United States. What happens to his property when he dies? The primary issues are: (1) what law controls the distribution of his estate, and (2) how do you get the authority to distribute the estate? The American had three types of property, each of which receives different treatment: (1) American immovable property (2) Ugandan immovable property, and (3) movable property.


Step One: Decide domicile. The American is not necessarily domiciled in Uganda simply because he lived there for five years. Very likely, a court would view his time in Uganda as a pursuit of business interests. However, if he died in Uganda and left behind a spouse or a child who had also lived in Uganda for two or more years, then that, in addition to other evidence that he intended to make Uganda his home, could very possibly convince a court that his domicile had changed to Uganda. The decision on domicile issue could go either way; therefore, a good lawyer will decide which is better for his client’s purposes and argue that way.

Step Two: Decide where to apply for Probate / Letters of Administration.  Because the deceased American had immovable property in two countries, it is inevitable that probate proceedings would have to be initiated in both the United States and Uganda. A personal representative appointed in Uganda would not have the authority to distribute property in the United States, and vice versa. Both courts would have jurisdiction but would apply the law differently to the different types of property, depending on the domicile of the decedent and whether or not he left a will.

Step Three: Decide Succession Issues:  As I said before, there are three types of property that will all receive separate treatment.
Immovable property in the United States – If he had a will, then the will, interpreted and applied according to the law of his domicile, controls the distribution. If he died intestate (without a will), then the intestacy law of the state where he was domiciled controls the distribution.
Immovable property in Uganda – If he had a will, then the will, interpreted and applied according to the law of his domicile, controls the distribution. However, if he died intestate (without a will), then Ugandan intestacy law controls the distribution.
Movable property – This property will be distributed based on the instructions in the will, interpreted and applied according to the law of his domicile; or, if he died intestate, according to the intestacy laws of his domicile. If movable property makes up the largest portion of his estate, the domicile question may turn out to be extremely important.

Step Four: Distribute the Estate: After domicile has been decided, Personal Representatives have been appointed with proper authority to distribute all the different types of estate property, and choice of law questions have been decided, then the rest is easy. The American Personal Representative and the Ugandan Personal Representative may then work together to ensure that the property is distributed to its rightful successors.

 

One final note: if a non-Ugandan ends up inheriting immovable property in Uganda, there are some additional steps that need to be taken.  Uganda does not allow non-Ugandans to hold “freehold” estates in land, but limits their ownership to leaseholds of either 49 or 99 years, and submits this ownership to approval of the Administrator General.