If you’re an executor to a deceased estate and some of the property of the deceased is located overseas or interstate, there can be an added level of difficulty in distributing the estate to the beneficiaries.
In a previous blog, “Acting as an Executor for a deceased estate – your plain English guide”, we wrote about the need for executors to call in the assets of the deceased so that they can repay any of the deceased’s debts and then distribute whatever is left over according to the Will.
In some circumstances, if there are assets located overseas of the interstate, the executor will need to submit the Grant of Probate to an interstate court for a ‘re-seal’. A re-seal is a recognition by one jurisdiction that a Grant of Probate or Administration made in another jurisdiction is valid. The process of re-sealing removes the need to make separate probate applications in every state, territory or country where the deceased had assets.
In this blog, we explain whether you need a re-seal for some common assets located outside Victoria and give examples of how we can help you with this process.
You may never have considered where your shares are located. Usually, the relevant address for your shares is the registered address of the company’s head office.
If shares are your only asset located in a particular state, you do not need to obtain a re-seal of the Grant of Probate in that state. Instead, you will need to send the Victorian Grant of Probate to the company holding the shares, along with a declaration form and any other forms they require. We have ample experience in dealing with estate shares and would be happy to assist you with this process.
Land and real property
In most cases, you will need a re-seal to deal with any real property (land, homes, other buildings) that the deceased owned interstate.
In New South Wales, for example, you must apply for a re-seal using a similar process to obtaining the original Victorian Grant of Probate.
The executor or their agent must advertise their intention to apply for a re-seal fourteen days before lodging a summons with the NSW Supreme Court. There needs to be an affidavit and an inventory attached to the summons.
Our firm can draw up these documents for you and lodge them with the relevant court ourselves or engage an interstate law firm that we trust to act as our agent.
For other assets (for example, a small amount of savings in an interstate bank account), you may be able to obtain the assets without the need for a re-seal.
We can take care of the correspondence with the asset-holders to ascertain their requirements and submit any necessary documentation for you.
The process of calling in overseas assets of a deceased estate varies across countries, both in procedure and difficulty.
Many Commonwealth countries, including the United Kingdom and New Zealand, will re-seal Victorian Grants of Probate.
If we are assisting you with administering an estate in Victoria, we can also organise for the appointment of a foreign agent in another Commonwealth jurisdiction and send all necessary documentation to them. To obtain a re-seal in the UK for example, we would need to send the original Grant of Probate or a certified copy to an agent via registered post.
Outside of the Commonwealth, the situation is more complex as not all foreign jurisdictions will recognise Australian Wills.
In most European Union countries, a testator can choose that the law of their country of nationality (including non-EU countries like Australia) should apply to their inheritance. This is good news if the estate for which you are executor includes a French château. If the estate includes a Beijing apartment, however, Chinese law will apply and the asset may not fall into the estate as predicted.
You have an option to prepare a foreign Will
If you have assets overseas and are concerned about how these will be collected following your death, you may wish to consider preparing a foreign Will in the relevant jurisdiction.
A foreign Will would operate in addition to your Victorian Will and would deal with your assets in a particular jurisdiction. A solicitor in the relevant country can help you prepare a Will that fulfils the local requirements, which may be very different to Victorian requirements. Your Victorian Will would continue to operate and cover your assets here and in other Australian states.
You can also contact our office to discuss making an International Will under the 1973 UNIDROIT Convention, signed by approximately twenty countries.
Administering an estate which includes interstate and/or overseas assets can be a difficult, costly and time-consuming process.
We recommend engaging a solicitor to help navigate the process.
Got a query or want to speak with a lawyer about your specific needs?
Choosing the right lawyer for you is crucial to getting optimal results.
With years of experience in estate administration, David Davis & Associates can assist you with the issues that you may encounter in relation to overseas and/or interstate assets.
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