Reseal of Probate Lawyers Sydney & NSW

Granting of probate is the proof that the named executor has been given the legal authority to wind up the deceased’s estate. Most organisations such as banks, building societies, credit card companies, etc. require to see proof before they will disburse assets to the executor.

In situations where the original grant of probate was made outside of New South Wales, the grant must be ‘resealed’ to be valid in NSW. Once the Supreme Court has resealed the original grant of probate it must be accepted as being valid in NSW as though it had been made in this jurisdiction in the first place.

If you are the executor or administrator of a deceased’s estate in a jurisdiction outside New South Wales, then you may have already obtained a grant of probate (or the equivalent in your jurisdiction i.e. a grant of Administration, Testamentary Order, Confirmation or Exemplification) in the state or country in which the deceased was domiciled when they died.

However, nowadays it is not uncommon for people to pass away having left assets, investments and property in various countries. If some of these assets are located in Sydney or elsewhere in NSW, there is no need to make an application for a fresh grant of probate. The Probate and Administration Act 1898 allows the application to be made to the Supreme Court of NSW to have the original Grant of Probate (or another legal grant of authority) resealed.

The Supreme Court only recognises Grants made in one of “Her Majesty’s Dominions”. This includes certain Commonwealth countries and includes other States and Territories within Australia. If you have obtained a Grant of Probate in the UK, Canada, New Zealand, South Africa or in Western Australia (WA) , Northern Territory (NT), South Australia (SA), Queensland (QLD), Victoria (VIC), Australian Capital Territory (ACT) or Tasmania (TAS) this Grant can be resealed by the Supreme Court of New South Wales, rendering it valid in Sydney and throughout NSW.

When dealing with a deceased’s assets, it is common for the body holding the asset (i.e. the bank, nursing home, share registry or Department of Lands) to require to see the Grant before releasing the asset. If the Grant was first obtained outside NSW the asset holder might require the grant to be resealed by the Supreme Court of NSW to be satisfied that it is legally valid in NSW.

Under section 107 (2) of the Probate and Administration Act, a Grant of Probate which is resealed by the NSW Supreme Court has the same legal effect and operation in New South Wales as if it had originally been granted in the state. In practice, this means that the executor is bound to perform their duties in line with the law of NSW, and they are subject to the same liabilities as an executor in NSW In summary, once resealed the Grant is no longer foreign and must be treated as though it were made in NSW in the first instance.

You may be able to avoid the need to obtain a reseal of Probate, but it depends on the value and type of assets which are located in New South Wales. To avoid having to seek reseal of probate, you may be able to sign a declaration or indemnity to satisfy the asset holder that you have the authority to deal with the estate. Each asset holder is likely to have their own requirements and stipulations, and as such, contact must be made with each to ascertain what these requirements are. When contacting the asset holder, you should provide the original grant of probate (or equivalent) and the death certificate. If the asset in question is an investment in the form of shares, and the original grant was obtained within Australia, then these may be released or transferred without the grant having to be resealed, provided the relevant forms have been filled in.

To make an application to have probate resealed, you must apply to the court in the correct form and with all of the information required by the relevant legislation and contained in the rules of court.