Reseal of probate: A vital term to know for estates with far-flung assets

When I ask clients if they’ve heard of ‘grant of probate’, I am usually met with vigorous nods. But when I ask if they’ve heard of ‘reseal’ of probate, with the exception of all but a few, I am met blank expressions and then the question, ‘what’s that?’.

As my colleague Margaret Arthur, a partner at CRH Law, explained in an article for Starts at 60 earlier this year, probate is a legal process that requires a registrar or judge of the Supreme Court to look at the original will, the death certificate and other information to ensure that the will is the last and valid will made by that person. “If the court is satisfied that the will is valid, it issues a fancy piece of paper bearing the court seal which the executor can then send to banks and other entities to ‘get in’ the assets belonging to the person who has died,” she explained.

But what is a reseal of probate?

Probate laws differ from country to country and even from state to state. Just because you have a grant of probate does not mean it will be accepted in other countries or even in another state or territory of Australia. Obtaining a reseal of probate involves making an application to the Supreme Court in the relevant state asking that the court recognise the original grant of probate. This process is known as resealing the grant.

For example, Janice’s mum Dora died in the US, leaving a will that named Janice as executor. Dora’s estate is located in the US but she has an Australian term deposit account with $150,000 in it. Janice obtains probate in the US and commences the estate administration.

But when Janice tries to obtain access to the Australian term deposit account, the bank advises that it won’t accept the US probate and it needs to see an Australian grant of probate or reseal of probate. Sometimes it’s state law which necessitates a reseal; other times, as with Dora’s estate, the request comes from a financial institution, usually driven by a desire for the certainty and safety that comes with the production of a reseal from the state the institution is located in.

In Janice’s case, she meets with her Australian legal advisor to know if she can get a reseal of the US grant of probate but finds that only grants of probates issued in Australian states and territories as well as those from the UK and New Zealand are eligible for resealing in Australia.  If a grant of probate is from another country such as the US, executors like Janice will need to apply for a new grant of probate in Australia.

How else is a reseal of probate used?

Let’s look at some more scenarios:

Scenario #1

Bill is named as the executor of his mother Mavis’ will. Mavis died in Queensland, leaving an estate worth $2 million that included a bank account containing approximately $200,000 and the beachside shack on the Gold Coast she called home. Does Bill need probate and does that probate need to be resealed?

• In this case, the bank holding Mavis’ account would inevitably require a grant of probate.
• Bill could obtain a grant of probate from the Supreme Court in Queensland.
• There appears to be no interstate or overseas assets and as a result, there would be no requirement for the probate to be resealed anywhere else.

Scenario #2

Bill has obtained a grant of probate in Queensland and following on from scenario one, finds that Mavis also left an investment property in New South Wales. Does Bill’s Queensland grant of probate need to be resealed?

• The Queensland grant of probate would not be accepted as sufficient evidence to deal with New South Wales property.
• Bill would need to make an application to the Supreme Court in New South Wales asking the court to reseal the Queensland grant of probate.

How to deal with reseal of probate issues

There are many versions of Janice and Bill’s stories. Having the benefit of good advice can put an executor on the path to a successful estate administration and this is especially the case where there is the added complexity of considering probates and reseals. Sadly, I see far too many expensive examples of probate and reseals gone wrong including:

• Executors applying for probate or reseals unnecessarily.
• Applications for probate or reseals in the wrong state or territory.
• Requisitions from incorrectly made applications for probate or reseals.

Given we are usually a nation of globetrotters and with ever more conservative thresholds imposed by financial institutions on releasing estate assets, probate and reseals of probate are becoming more prevalent. I doubt it will be too long before I ask my clients whether they have heard of a reseal of probate, and I am met with vigorous nods and then the question” “How many reseals will I need and from where?!”.