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grant of probate

Grant of Probate

Why is a Grant of Probate required to collect the assets of a deceased person in Australia?

When a person dies, the beneficiaries or next of kin are not able to deal with the assets of the deceased in Australia without a grant of probate or administration being produced.  For example, in most cases, banks will not transfer funds, the share registry will not sell or transfer shares and the land authorities will not transfer property held by the deceased without a grant of probate or letters of administration being produced.

If the grant has been issued by a foreign court, the grant must be resealed by the Australian courts in order for the assets of the deceased to be collected and distributed to the beneficiaries of the estate.  If the foreign grant is not recognised under Australian law, a fresh grant of probate or letters of administration must be obtained.

What happens if the deceased dies with a Will in place?

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.

What happens if a person dies without a Will?

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 these beneficiaries apply 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 beneficiaries determined in accordance with the law in Australia.

If the deceased person was domiciled in a foreign country, the personal assets of the deceased 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 of the land where the property is situated.

Domicile - the deceased's permanent home

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.

Some situations are clear cut. For example, the deceased person may have lived in France for the better part of his or her life and then migrates to live permanently Australia taking out Australian citizenship. When this person dies several years later, Australia would be considered to be the deceased person’s domicile although the deceased person may have spent a greater portion of his or her life in France. In today’s global world, the question of the deceased’s domicile becomes increasingly complex. A deceased born in the UK may later chose to live in the UK in the summer months and live in Australia the rest of the year, holding dual UK and Australian citizenship and having assets in both countries.  Here, an investigation must be carried out to determine the intention of the deceased and whether the original domicile, being the place of birth, has been displaced by the subsequent circumstances surrounding the deceased’s life.

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