When a client in Singapore, Malaysia or Indonesia dies with assets in Australia, the home-country grant of probate is rarely enough. Australian banks, share registries and land registries will usually not act on a foreign grant alone. Without planning, the Australian assets can sit frozen for many months while the rest of the estate is distributed.
Step 1: Work out what is actually in the estate
Not everything with the deceased’s name on it forms part of the Australian estate:
Jointly owned property held as joint tenants passes automatically to the survivor. It needs a death certificate and a transmission form, not a grant.
Assets in a trust or company are not part of the estate. What passes is the deceased’s shares, units, or role under the trust deed, such as appointor or guardian.
Superannuation (Australian retirement savings) is paid by the fund trustee, often under a binding nomination, and may not form part of the estate.
Solely owned land, bank accounts and shares do form part of the estate and generally need an Australian grant.
Getting this map right early is the most useful thing an adviser can do.
Step 2: Reseal or apply afresh
Each Australian state has its own Supreme Court and its own grant. Assets in Victoria and New South Wales may need a grant in each state.
Grants from Commonwealth countries, which generally include Singapore and Malaysia, can usually be resealed by the Australian court. Resealing is quicker than a fresh application, but the court will need an authenticated copy of the original grant and Will. Indonesia is not in that group, so an Indonesian estate will usually need a fresh Australian grant, with translated and authenticated documents. Islamic-law distributions and Indonesian notarial deeds of inheritance raise their own evidence questions.
If the foreign executor does not want to deal with the Australian process, they can appoint an attorney in Australia to apply for the grant on their behalf.
Step 3: Deal with the Australian assets
Banks release funds once the grant is produced and identity checks are complete.
Land is transmitted to the executor and then sold or transferred to beneficiaries. A foreign beneficiary receiving residential land can trigger foreign investment notification and, in some states, foreign surcharges.
On sale, a foreign resident estate faces capital gains tax and the buyer must withhold 15% of the price unless a clearance certificate applies.
A final Australian tax return for the deceased, and returns for the estate, may be needed.
Step 4: Watch the claim periods
In Victoria, eligible family members can apply for further provision from an estate within 6 months of the grant. Executors who distribute Australian assets before that period ends, knowing of a possible claim, can be personally exposed. This is often unfamiliar to families from fixed-share systems.
When an independent administrator is the better option
Sometimes no family member can act, the family is in dispute, or the named executor is overseas and unwilling. Our firm can act as independent professional executor or administrator for the Australian estate, or for the Australian portion of a cross-border estate. This keeps the Australian administration moving and gives the family a neutral party they can trust.
What advisers can do before death
Confirm whether the client has a separate Australian Will, and that it does not accidentally revoke the home-country Will.
Check how each Australian asset is held.
Make sure the client has an Australian enduring power of attorney, so the same assets are not frozen by incapacity first (see our guide on powers of attorney and ageing clients).
Refer a matter. If an estate you are handling has an Australian component, contact Justin Chua for an initial discussion.
This article is general information only and is not legal advice.
More notes for private bankers, trustees and family offices: For Private Banks, Trust Companies and Family Offices.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice.
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