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To have a grant made in another state or country sealed by the Supreme Court of New South Wales (NSW)- allow it to take effect in NSW in relation to NSW assets.
Usually a grant of probate or administration will be applied for in the appropriate Court of the state or country where the deceased person was residing when they died, which will usually be the place where most of the deceased's assets that will need to be collected and distributed are located. In Australian states and territories the appropriate Court is the Supreme Court of the relevant state or territory. If a deceased person owned assets in more than one country it may be necessary to apply for a grant in each place where assets were located. However, if a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is possible to have a grant issued by a Court in one jurisdiction recognised in another state or country. This process of recognising the grant made in the other state or country is called resealing the grant. In NSW resealing of grants is permitted under section 107 of the Probate and Administration Act 1898 (NSW). Once resealed, the original grant will have the same effect and same operation in New South Wales as the original grant. The original grant of representation, an exemplification or a court sealed and certified copy of the grant must be produced to the Supreme Court of NSW for resealing.
Depending on the type, size and value of the assets located in NSW it may not be necessary to either obtain a reseal or a fresh grant in NSW. You will need a reseal or a grant if the deceased person had real estate in NSW. If there is no real estate then you should consider approaching the asset holders (banks, etc) to determine if they may transfer the assets without a reseal or grant being made. It may be possible to have the asset holder transfer the assets by signing a declaration of your entitlement and/or an indemnity in favour of the asset holder if someone else subsequently makes a claim. This should be considered particularly if the executor is the sole beneficiary under the will or the applicant is the sole next of kin under intestacy. Different asset holders have different criteria and requirements for releasing assets. Note also that the proceeds of life insurance and superannuation generally do not form part of the estate, however this will depend on the terms of the relevant policy. Despite this, sometimes the trustee will require a grant to be made or resealed before they determine who is entitled to the superannuation or insurance funds. However, you may include a death benefit if applicable as it is not released to the nominee.
Not all Grants from other countries can be resealed by the Supreme Court of NSW. The Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State. Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands. Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.
If a grant cannot be resealed then it may be necessary to apply for a new grant in NSW.
If the grant in the other jurisdiction was a grant of probate, then the application in NSW would be for a grant of probate as contained in a copy of the will in the overseas grant. In which case you will require an exemplification from the other court.
If the original grant was for probate or for administration with the will annexed then the Court in the other jurisdiction will need to retain the original will. In such cases you will apply for a grant of probate, or for administration with the will annexed, of a copy of the will as contained in the grant issued in the other jurisdiction. If the deceased person died without a will then you will apply for a fresh grant of administration in NSW.
While the probate law in other Australian states and in most Commonwealth countries is similar to the law in NSW, there can be significant differences in the law in some overseas countries in relation to the validity of Wills and in relation to who may be entitled under intestacy. Generally the law that will apply will be the law of the place where the person was residing, as distinct from visiting, when they died. If a Will was made overseas you will need to consider what the relevant law is that applies and whether the Will applies to assets in NSW. If you are unsure of whether you need to, or are entitled to, apply for a reseal or whether you may need to apply for a fresh grant in NSW please seek legal advice from a qualified solicitor.
If you have difficultly completing the forms or need further guidance, please contact us by emailing email@example.com Registry staff can assist you with procedural advice, but are unable to provide you with legal advice.
20 Sep 2023
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