Sep92024

Can a UK Probate be resealed in Australia?

International Probate, Probate, Probate and Deceased Estates

Under Australian law, a grant of probate or letters of administration issued by the courts of the United Kingdom are permitted to be resealed in Australia.

Unless the value of the estate in Australia is very small, the executor or administrator of a deceased estate will need to reseal the UK grant in Australia to have the authority to collect the assets of the deceased in Australia. If probate or letters of administration have not been granted by a UK court, then a fresh application must be made to the Australian court.

In the United Kingdom, a grant issued out of either England and Wales, Scotland, or Northern Ireland will be recognised in other parts of the United Kingdom without further formality. However, in Australia, depending on the nature of the asset held by the deceased, a UK grant of probate or letters of administration may have to be resealed in each state or territory in Australia where the deceased held assets. For example, if land is held in two different states, then resealing must occur in these two states. Resealing in different states and territories may not be required in the case of bank deposits and shares. There are six states and two self-governing territories within Australia, each having their own legislation relating to probate and the administration of deceased estates. It is best to seek legal advice before taking further steps in the estate.

Resealing UK Grants and making a fresh application in Western Australia

Robertson Hayles Lawyers is a legal practice based in the State of Western Australia.

Under the Administration Act (WA) 1903 of Western Australia, probate and letters of administration issued by a court of His Majesty’s Dominions can be resealed in Western Australia by the executor or administrator of the deceased estate, or by any person authorised by power of attorney in that behalf.

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Apr22023
Quick Guide for Applying for Probate in Western Australia

Quick Guide for Applying for Probate in Western Australia

Probate

When a person passes away, leaving a will and assets in the estate, the executor named in the will must apply to the Supreme Court for probate. The grant of probate issued by the court gives the executor the authority to act on behalf of the deceased. When applying for a grant of probate, the executor should take the following steps:-

  1. Locate the will and keep it in a safe place. The physical appearance of the will should not be altered in any way.   Keep the will in the same condition as you found it. The deceased may have made more than one will in his or her lifetime. The will found may not be the latest will.   A later will usually supersedes the earlier will. Therefore, =enquiries with the deceased’s financial planner, solicitor or accountants to find out if a later will exists. A document which does not have the formality of a will  but sets out the deceased’s intentions with respect to the distribution of the deceased’s assets may be recognised by the Court as an informal will. In this case, the assets will be distributed in accordance with the terms of the informal will.
  2. Obtain the original death certificate or a certified extract from the death registry or seek the assistance of the funeral director to obtain the death certificate.
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Mar112023
Do beneficiaries pay tax on inheritance in Australia?

Do beneficiaries pay tax on inheritance in Australia?

Probate, Probate and Deceased Estates

In Australia, there are no inheritance taxes payable. There are no capital gains tax payable on a transfer of assets from the deceased to the estate and finally to the beneficiaries. However, as the Australian Taxation Office points out on its website, “There may be some tax obligations for beneficiaries, depending on the nature of any distribution they may receive.”

Receiving Assets from the Estate

Beneficiaries often receive money held by the deceased in a bank account.  A beneficiary does not pay any tax on such money received. The deceased or the estate in the final tax return will pay tax on the taxable amount of the interest earned in relation to these monies.

Beneficiaries who receive real estate, or a share of the real estate from the estate are not taxed at the time when the title is transferred to them. Instead, they inherit the “cost base” namely the costs incurred by the deceased at the time when the real estate was acquired by the deceased so that when the real estate is disposed by the beneficiary, capital gains tax can be calculated to determine if any gain is made. Capital gains tax is payable by the beneficiary on any gain made.

This position is similar to company shares held by the deceased. Company shares transferred to the beneficiary are received tax free. Capital gains tax is payable when the shares are disposed of by the beneficiary and income tax is payable on income derived from the shares as dividends.

Receiving Money from Sale of Assets by the Estate

If the assets of the estate such as real estate or company shares are sold by the executor or administrator of the estate, they are required to pay any tax payable by the estate. The executor or administrator applies to the Australian Taxation Office for a tax file number and files an estate tax return. For a period of two years, the estate receives the benefit of paying tax at the progressive tax rate, same as an adult taxpayer. After that, the estate is taxed as a trust at the maximum tax rate if paid by the trustee, or if allocated to beneficiaries who are presently entitled then tax is paid by the beneficiary at their personal marginal rate of tax.

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Nov172022
Can I remove the executor of the estate?

Can I remove the executor of the estate?

Probate

The executor appointed is not acting in the best interests of the beneficiaries – can I remove the executor of the estate?

Beneficiaries often raise concerns about the competence or honesty of the executor appointed under a grant of probate. These concerns escalate when they do not receive their inheritance after a period of time has passed following the death of the deceased. In certain cases, the beneficiaries may be worried that their inheritance may be compromised as a result of a conflict between the executor’s personal interest and that of the beneficiaries. In these situations, when a tipping point is reached, the beneficiaries want to replace the executor.

The replacement of an executor is not a simple case of the beneficiaries acting unanimously and replacing the executor.   The removal of an executor can only be achieved by a beneficiary or creditor of the estate making an application to the court for the grant of the probate issued to that executor to be revoked and for a new grant to be issued to a beneficiary or creditor of the estate or a professional trustee company or the Public Trustee to administer the deceased estate. An executor is usually a family member or a close family friend. Hence, the removal of an executor is not only a complex and costly exercise but can also be emotionally draining.

In Western Australia, under the court’s inherent powers and pursuant to section 18 of the Supreme Court Act 1935 (WA),  the Supreme Court has the power to revoke the grant of probate issued in relation to a deceased estate within Western Australia. The court in all other states and territories in Australia have similar powers.   In what circumstances will the court exercise its powers and remove the executor by revoking the grant of probate issued? Case law indicates the court may act when it is shown that the executor: –

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Oct162021
Timeline in Obtaining Probate and Letters of Administration in Deceased Estates

Timeline in Obtaining Probate and Letters of Administration in Deceased Estates

Deceased Estates, Probate

When dealing with deceased estates, there is often a need to obtain the Grant of Probate or Letters of Administration as quickly as possible so that the assets can be distributed to the beneficiaries.

How long does Probate and Letters of Administration take?

This depends on the facts of each case.  If the matter is complex, it may take some time to gather the relevant information to prepare the application for lodgement with the Supreme Court of Western Australia.

Probate – Deceased left a Will

We will be able to assist the executor named in the will and prepare the application for the Grant of Probate at the appointment at our office if: –

  • The original will is available.
  • The will is in order.
  • The death certificate has been issued.
  • All required information relating to the deceased are available including a list of the deceased’s assets and liabilities and their respective values.
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