Disclaimer — This article contains general educational information only and should not be relied upon as legal advice. Probate requirements…
Disclaimer — This guide is for general educational purposes only and does not constitute legal advice. Grants of probate, reseals and foreign-estate administration are governed by the laws of multiple jurisdictions and can change without notice. Executors and beneficiaries should seek personalised advice from solicitors experienced in both Queensland succession law and the relevant overseas system.
It is increasingly common for Queensland residents to die owning a beach apartment in Fiji, shares on the New York Stock Exchange or a London bank account. While a Queensland grant of probate empowers the executor to deal with local assets, it carries no automatic authority abroad. Government registries, land offices and banks in other countries will generally demand either a “resealed” Queensland grant or a fresh grant issued in their own courts.
Understanding which path applies—and the practical time-frames, fees and tax traps—helps executors avoid frozen assets, double duties and frustrated beneficiaries.
Key Concepts in Cross-Border Estate Work
| Term | What It Means for Executors |
|---|---|
| Reseal of probate | A foreign court (or land titles office) formally recognises and endorses the Queensland grant. After reseal, the executor may sell or transfer local property. |
| Ancillary (secondary) grant | A new probate granted in the foreign court—even when there is already a Queensland grant—because that jurisdiction does not allow reseals. |
| Foreign-law assets | Real estate, shares, bank accounts or other interests located outside Australia. Local property law, estate tax and currency rules all apply. |
| Domicile | The deceased’s “home” jurisdiction for succession purposes. Domicile affects which law governs movable assets (cash, shares) but land always follows the law where it is situated (lex situs). |
Where Will a Queensland Grant Be Resealed?
| Jurisdiction | Reseal Available? | Legislation / Practice | Typical Documents Needed |
|---|---|---|---|
| Other Australian states & territories | Yes | Probate and Administration Act (each state) | Sealed QLD grant, exemplification, statutory declaration, filing fee |
| UK (England & Wales) | Yes | Probate (Resealing) Act 1928 (UK) | QLD grant, certified copy of will, oath, inheritance-tax clearance if required |
| New Zealand | Yes | High Court reseals under Oaths and Declarations Act | QLD grant, solicitor affidavit, NZ Inland Revenue clearance |
| Singapore / Hong Kong | Yes (Commonwealth recognition) | High Court probate rules | Sealed grant, estate duty clearance (if historic) |
| United States | No reseal – ancillary grant needed in each state with assets | State probate code (e.g., California Ancillary Probate Ch. 11) | QLD grant, death cert, executor bond, attorney representation |
| Fiji, PNG, Solomon Islands | Yes (colonial statutes) | Supreme Court rules | Sealed grant, affidavit of assets in Fiji / PNG |
Tip: Even in “reseal” jurisdictions, local revenue authorities may block the reseal until inheritance or estate duties are cleared (e.g., UK HM RC IHT 400).
Step-by-Step Reseal Process (Example: England & Wales)
- Listing foreign assets – Executor prepares schedule of UK assets (e.g., £300 000 Barclays account).
- Inheritance-tax return – File IHT 205/IHT 400; pay any tax before reseal.
- Prepare oath or statement of truth – Affirm that the QLD grant is genuine and unrevoked.
- File application – Submit sealed copy of QLD probate, original will (if required) and sworn statement to the UK Probate Registry.
- Receive resealed grant – Usually 4–8 weeks; enables closure of the UK bank account or sale of UK shares.
- Repatriate funds – Transfer sale proceeds to the Australian estate bank account; account for FX gains in final tax return.
Common Pitfalls and How to Avoid Them
| Pitfall | Why It Delays or Costs Money | Prevention Strategy |
|---|---|---|
| Assuming every country reseals | USA, France & many EU states demand new local grant → months of extra court time | Obtain country-specific advice before lodgement |
| Overlooking estate / inheritance tax | UK IHT or US federal/state estate tax may be triggered at thresholds | Engage tax agent early, budget for potential tax |
| Currency fluctuations | FX swings between death and asset sale can create unexpected CGT | Lock exchange rate with forward contract if large sums |
| Missing foreign debt | Overseas mortgage or rates arrears reduce net proceeds and may create personal liability | Order local title searches and council certificates |
| Not legalising documents | Many countries need apostille (Hague) or embassy certification | Use DFAT or authorised notary before shipping papers |
Role of the Queensland Executor vs. Foreign Lawyer
- Queensland executor remains responsible for overall estate and accounting to beneficiaries.
- Foreign lawyer or notary acts as local agent: prepares affidavits, files reseal/ancillary grant, liaises with land office or bank, secures tax clearance.
- Communication – Executors should set up joint progress schedules to track filing dates, expected reseal issue dates and fund repatriation.
Frequently Asked Questions
Q: Do I need to reseal for overseas shares held through an Australian broker?
A: No, CHESS-sponsored foreign shares are treated as Australian property. Direct holdings on a foreign registry (e.g., US transfer agent) do require reseal or ancillary probate.
Q: Can I sell foreign real estate before reseal?
A: Typically no. You may sign a conditional contract, but completion and registration cannot occur until the grant (or reseal) is produced to the local land authority.
Q: Is there a time limit to reseal?
A: Most jurisdictions impose no strict deadline, but delays risk property maintenance costs, currency drift and beneficiary discontent. Some (e.g., HK) levy penalty duty for late estate-duty filings.
Q: Will Australian CGT apply when foreign assets are sold?
A: Yes, if the deceased was an Australian tax resident. Capital gain is calculated from the asset’s cost base or market value at death, converted to AUD, with foreign tax offset credits available.
Q: What if a beneficiary lives overseas?
A: Cross-border distributions may attract withholding tax, local inheritance tax in the beneficiary’s country, or foreign exchange regulations. Obtain dual-country tax advice.
Key Take-Aways
- A Queensland grant does not automatically authorise dealing with overseas assets. Check whether the destination country reseals or requires a new grant.
- Expect extra months for foreign court processing, tax clearances and document legalisation.
- Budget for foreign estate or inheritance taxes where thresholds apply (UK, US, EU).
- Engage a local lawyer/notary early; their fees are usually outweighed by avoided delays.
- Keep beneficiaries informed; cross-border estates test patience and transparency prevents disputes.
Sources / Citations
- Probate (Resealing) Act 1928 (UK) — s 1 recognition of dominion grants.
- Uniform Civil Procedure Rules 1999 (Qld) pt 11 ch 15 — exemplification of Queensland grants.
- Inland Revenue (UK) Inheritance-Tax Manual IHTM 05001 — overseas grants and reseals.
- Succession Act 1981 (Qld) s 6 — jurisdiction of the Supreme Court in probate matters.
- NSW Supreme Court, Practice Note SC Eq 7 (2019) — reseal procedure for interstate/foreign grants (comparative).