Probate and Letters of Administration
Production of Grant Required to Collect the Assets of the Deceased in Australia
When a person who resides in Australia or overseas dies with assets in Australia, the beneficiaries or next of kin are not able to deal with such assets without a grant of probate or administration being produced. Banks may not release funds, share registries will not sell or transfer shares and the land authorities will not transfer property without a grant of probate or administration being produced.
If the grant has been issued by a foreign court, the grant must be resealed by the Australian court in order for the assets of the deceased in Australia to be collected and distributed to the beneficiaries of the estate. If the foreign grant is not recognised for resealing under Australian law, a fresh grant of probate or letters of administration must be obtained.
Deceased dies with a Will
If the person dies with a Will, the “executor” appointed under the Will has the authority to administer the estate. This authority must be validated by the court before the executor is permitted to deal with the assets of the deceased. The executor must apply to the Court for a “grant of probate”. The purpose of this application is to prove the validity of the will. When the grant is issued, the executor has legal authority to deal with the estate of the deceased. The assets of the deceased will then be distributed to the beneficiaries in accordance with the last will of the deceased.
Deceased dies intestate
When a person dies without a Will, the deceased is said to have died “intestate” and the beneficiaries are determined by law. Usually, one of the beneficiaries applies to the Court for a “grant of letters of administration”. The purpose of this application is to prove to the Court that the person applying is the most appropriate person to be appointed the “administrator” of the deceased estate. When letters of administration are issued, the administrator has authority to deal with the estate of the deceased.
If the deceased person was domiciled in Australia, all assets of the deceased person will be distributed to the beneficiaries determined in accordance with the law in the Australian state or territory where the deceased person was domiciled.
If the deceased person was domiciled in a foreign country, the personal assets such as bank deposits, shares, motor vehicles and jewellery held in Australia will be distributed in accordance with the law of the country where the deceased was domiciled while interests in real estate situated in Australia will be distributed to beneficiaries determined in accordance with the law in Australia.
If the deceased did not leave a will, the question of the deceased’s “domicile” is central in determining the beneficiaries and their share in the deceased estate. The law on the distribution of the assets of an intestate estate differ from country to country.
“Domicile” means the country that the deceased considers to be his or her permanent home. If the deceased left his or her country of origin to reside in another country temporarily for work or study purposes, the domicile of the deceased is the country that the deceased intends to eventually return to and which the deceased considers to be his or her permanent home. Most people have the same domicile from the time of birth spending only short stints in other countries for work, study or holidays. However, if a person migrates to live permanently in another country with no intention to return to the country of origin, then the new country would be considered the country of domicile.