To reseal or not to reseal? It is important to note the requirements of the various Australian states and territories, other than New South Wales, for a reseal of a grant of probate. 

When the deceased’s assets are located in the same place, this simplifies the process for the executor responsible for realising and distributing the assets of the deceased estate. However, in some cases, the deceased estate will include assets from another state or territory. 

In Australia, a grant of probate is obtained from the Supreme Court of the State or Territory where a deceased person was residing when they died. Generally, this grant will be sufficient to deal with all the assets and liabilities the deceased owned upon death. A grant of probate provides assurance to any third parties involved in the realisation and distribution of the deceased’s estate, of the identity of the legal personal representatives. When the deceased’s assets are located in the same place, this simplifies the process for the executor responsible for realising and distributing the assets of the deceased estate.

However, in some cases, the deceased estate will include assets from another state or territory. In this situation, a reseal of the grant of probate will be required. Resealing is when the executor, who has already obtained a grant of probate for the will in one jurisdiction, applies to another State or Territory’s Supreme Court, so that the grant may be recognised in that jurisdiction. For example, if the deceased died in NSW, but had an investment property in Victoria, once resealed, the original grant will have the same effect and operation in Victoria, as it did in New South Wales.

To Reseal or Not to Reseal?

It is important to note the requirements of the various Australian states and territories, other than New South Wales, for a reseal of a grant of probate.

Queensland

Generally, if probate has been granted in another Australian state or territory, a reseal will be required for assets in Queensland. However, there is a special exception in circumstances where real estate is to be transferred to a beneficiary named in the will, or the real estate is to be sold. The Land Titles Registry has a special procedure, and, therefore, a grant and/or a reseal from another Australian state or territory will not be required.

Victoria

The only instance that a grant and/or reseal may not be necessary in Victoria is if th deceased person’s estate is small and does not contain real property. This is generally applicable to most other Australian states and territories.

Australian Capital Territory & Northern Territory

Commonly, if probate is granted another Australia state, a reseal will be required for asset in either the Australian Capital Territory or the Northern Territory. There are nevertheless some circumstances in which you may not be required to apply for a grant, letters of administration, and/or a reseal. For example, if the deceased did not own any property, or only had a small amount of money, it may not be necessary to apply for a grant, letters of administration or a reseal.

New South Wales

Depending on the type, size, and value of the assets, it may not be necessary to obtain a grant and/or reseal in New South Wales. There is no statutory requirement to obtain a grant in every case, nor does the Court decide whether a grant is required to administer an estate. Some third parties may not require a grant, allowing the estate to be administered informally, but most times a grant, or a reseal, will be required by a third party to release an asset. For example, where the amount held in a bank account of the deceased is minimal, and there are no complications, third party banks are likely to release it.

Examples of third parties include Land Registry Services NSW, banks, nursing homes, and company share registries. If in doubt, contact each third party and find out whether a grant or a reseal is required to release the monies or assets. However, be prepared that these third parties may impose other conditions if a grant is not required. For example, a signed statement of indemnity. For real estate owned by the deceased solely or as a tenant in common, transfer of the interest will require a grant. On the other hand, to transfer a deceased’s real estate held in a joint tenancy to the surviving joint tenant, the provision of a death certificate may be enough.

South Australia

Like New South Wales, depending on the type, size, and value of the assets, it may not necessary to obtain a grant and/or reseal in South Australia. Similarly, some deceased estates can be administered informally, and some third parties may release an asset or monies without requiring a grant. For real estate, owned by the deceased solely or as a tenant in common, Land Services SA will not process a transfer without a grant. But, like New South Wales, providing a death certificate may be enough for the deceased’s interest as a joint tenant in real property to be transferred to the surviving joint tenant.

Tasmania

In Tasmania, a grant or a reseal of a grant are required in all circumstances. However, much like other Australian states and territories, third parties may release some low value assets, with the exception of real estate, without a grant or a reseal.

Western Australia

In certain circumstances, it may not be necessary to obtain a grant and/or reseal. For example, like SA and NSW, where real estate is held in joint names as “joint tenants” or when the funds in a deceased’s bank account is only a small amount. There are two special exceptions for Western Australia, where a grant and/or reseal may not be required:

• where the deceased’s only other assets were personal possessions; and/or
• where the only property left by the deceased (other than items of personal property)
  is a car or a motor bike.

Our Advice

If you are the nominated executor for a deceased estate with assets across multiple state and territory jurisdictions, we recommend you contact the institutions holding the assets to understand your rights of transfer, so that the estate can be effectively administered and assets best distributed to beneficiaries. Examples of such institutions include banks, superannuation funds, and insurers. If you enquire with the institutions and find that there are assets held solely in the deceased’s name, the institution will usually tell you whether they require a grant of probate to release those assets to you, or any other relevant documents.

We hope this article has armed you with an understanding of the varying reseal requirements across Australian jurisdictions. We hope this will assist you in the event that you are the executor of an estate with assets across multiple jurisdictions. For further enquiries regarding Wills & Estates please contact us online or call direct on (02) 9994 0130.