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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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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