Reseal of Probate in Australia
A grant of probate or letters of administration may have been issued by a foreign court. However, this foreign grant cannot be used in an Australian court to collect the assets of the deceased situated in Australia unless the grant is “resealed” by the Australian court.
"Resealing" is the legal procedure where a foreign grant recognised under Australian law is validated by the Australian court for use in Australia. When resealed, such foreign probate or administration has force and effect in Australia, and every executor and administrator must perform the same duties and be subject to the same liabilities as if the probate or administration had been originally granted by the Australian court.
Preliminary Question – Is there a Need for Resealing?
Before proceeding with resealing, the executor and administrator must determine whether probate or administration or resealing of such 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 grant. For example:
- Bank accounts held in the joint names of the deceased and a surviving third party may not fall within the estate and the surviving joint account holder may be entitled to the entire deposit in the bank account
- Property held by the deceased and a surviving party as joint tenants will not fall within the estate as the surviving property owner is entitled to the interest of the deceased owner on the basis of the right of survivorship
- Superannuation and insurance benefits may also not fall under the estate as a result of a nomination made by the deceased
- On the other hand, assets which fall within the deceased estate may not require production of the grant or a reseal of such grant on account of the value of the asset. It may be possible to have the asset holder transfer the assets by signing a declaration of your entitlement and/or providing an indemnity in favour of the relevant authority holding the asset. For example, many banks permit the executor or the next of kin in the case of intestacy to access the asset without requiring probate or administration if the value of the bank deposit is small. In Australia, different asset holders have different criteria and requirements for releasing assets.
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