When a grant of probate or letters of administration is issued by a foreign court, it cannot be used in Australia to collect, transfer or distribute the assets of the deceased situated in Australia unless the grant is ‘resealed’ by the Australian court.
‘Resealing’ occurs when a foreign grant recognised under Australian law is validated by the Australian court for use in Australia.
When a foreign probate or administration is ‘resealed’, it can be used in Australia to collect, transfer and distribute the assets of the deceased situated in Australia.
Not all foreign grants are recognised throughout Australia. The first question an executor or administrator of an overseas deceased estate has to ask is whether the foreign grant is recognised by the state or territory in Australia where the assets of the deceased are located.
Each state and territory in Australia has its own rules relating to the recognition of foreign grants. Generally, all states and territories in Australia recognise a grant of probate or letters of administration issued by a court of ‘Her Majesty’s dominions’. This means grants issued by the courts of the United Kingdom and her dominions may be resealed in an Australian state or territory.
Some Australian states and territories have a wider recognition of foreign grants. Victoria recognises grants issued in Singapore, Malaysia, Hong Kong, Fiji, various Canadian provinces and other Commonwealth countries. Others, like Western Australia have a narrow ambit recognising only grants issued by a court of ‘Her Majesty’s dominions’.
Where resealing of the foreign grant is not available, the executor or administrator can apply for new grants issued out of the courts in Australia for use in Australia for deceased persons domiciled in a foreign jurisdiction.
Before proceeding with resealing, the executor or administrator of the deceased estate must consider whether probate or administration or resealing of such a grant is required by the relevant authority in order for the asset to be released for distribution to the beneficiaries of the deceased estate. In certain circumstances, it may not be necessary to obtain the grant or the resealing of the grant. For example, where real estate is held in joint names as ‘joint tenants’ or when the funds in a bank account is a small amount.
Overseas executors and administrators should also note that a grant of probate or administration obtained in an Australian state or territory cannot be used in another state or territory unless the grant has been resealed. For example, if a deceased held properties in both New South Wales and Western Australia, a grant issued out of the United Kingdom must be resealed in both these states in order to deal with the properties of the deceased.
For all enquiries please contact Robertson Hayles Lawyers on (08) 9325 1700 by email at enquiries@robertsonhayles.com or via our contact form and we will be happy to assist you.