Australia is a multicultural country so it stands to reason that there will be a strong chance that when a person or family member dies, they or their family member will have assets in a jurisdiction outside Australia. Being a dual national or having assets in more than one jurisdiction raises issues when it comes to obtaining probate and administering an estate.
When a person dies, their estate must be administered in accordance with their Will and the applicable law. Probate is the legal process by which a deceased person’s Will is validated, and their estate is managed according to their wishes. However, in cases where the deceased had assets in multiple jurisdictions, obtaining probate becomes more complex, as it may be necessary to apply for probate in each jurisdiction where the assets are located.
Understanding Jurisdictional Issues
Being an executor can be an onerous job for anyone who takes on the role. In Western Australia an executor named in a Will needs to be a resident of the state because the Court overseeing probate matters generally requires local jurisdiction to effectively manage the estate. If the chosen executor lives outside WA, they can appoint an attorney that does reside within the state to handle the estate administration on their behalf.
Probate is typically governed by the law of the jurisdiction where the deceased resided at the time of death. While the grant of probate in WA is valid in WA for the assets held in Australia, it does not automatically confer legal authority in other jurisdictions where some of the deceased’s assets may be located. When assets are located in another country, and no Will of the deceased is found in that country, there will be a need to initiate a separate procedure in that location. This is often known as a “re-seal of probate” in the foreign jurisdiction. This is a process that involves validating the will in the secondary jurisdiction (if the law in that jurisdiction permits) to manage and transfer the assets held in that jurisdiction. For example, a person dies who held real estate in both WA and New Zealand. There is no Will in New Zealand so the grant of probate that issues in WA will need to be re-sealed in New Zealand in order to sell the New Zealand assets, access bank accounts or settle debts. It is important to emphasise however that not all countries allow a “re-seal of probate”. In Australia, for example, we only re-seal for countries who are part of the Commonwealth of the Realm. Where there is no procedure to re-seal, the applicable law in the foreign jurisdiction needs to be carefully considered.
It is important to ensure that the executor’s authority is recognised by the Courts in the jurisdiction where the assets are located. Without this official recognition the executor may be unable to carry out their duties and dispose of the assets. Executors who do not obtain a reseal of probate, or comply with the law in the alternate jurisdiction, and attempt to administer assets in that jurisdiction without a reseal risk legal challenges from beneficiaries, creditors or other parties with an interest in the estate.
Conclusion
Executors and beneficiaries should seek legal advice to ensure compliance with both local and foreign probate laws. While it may involve multiple legal processes and potentially lengthy timelines, proper planning and knowledge can help streamline the process and ensure the deceased’s wishes are honoured across borders. Lynn and Brown regularly act as estate attorneys for non-resident executors as well as where there are multiple jurisdictions, and support executors in their role to help them navigate the many obstacles that can arise during the administration process.
About the Author: Barbara is a highly experienced Wills & Estates lawyer and holds a diploma in this area with the Society of Trust and Estate Practitioners (STEP), a leading network of experts in trust and estate planning.
Barbara acts in all areas of Wills and Estates, including estate planning, estate administration and trust formation for clients.
