Trust companies and professional executors in Singapore, Hong Kong, Kuala Lumpur, Taipei, Jakarta and elsewhere are often appointed by families whose wealth has an Australian piece. A client dies holding a Melbourne apartment, an Australian brokerage account or shares in an Australian company. Or an offshore trust the company administers owns Australian property, and the person who controlled it has died.
In each case, Australian assets usually cannot be dealt with until someone with Australian legal authority steps in. This article explains, in general terms, the ways a foreign trust company or professional executor can act in an Australian estate, the administration issues that commonly arise, and how Australian lawyers can work alongside the offshore team.
When an offshore trust company or executor needs Australian help
The situations we see most often are:
- A deceased with Australian assets, where the trust company or professional executor is named as executor in a Will made in Australia or overseas.
- A foreign executor or trustee who has no presence in Australia and needs someone to apply for a grant, collect assets or sign documents locally.
- An offshore trust holding Australian property or shares, where the death of a settlor, protector or individual trustee raises questions about who can now deal with the Australian assets.
Our separate article on executors living overseas covers the individual executor’s position. Here we focus on institutions and professional executors.
Ways to act in an Australian estate
The foreign executor applies personally
Living or being incorporated outside Australia does not, by itself, prevent an executor from applying for a grant. The application is made in the state where the assets are, and the documents are signed and sworn overseas before an authorised person. Whether a corporate executor that is not an Australian licensed trustee company can take the grant in its own name, and in which state, is a question that needs checking early.
An Australian attorney applies for the use of the executor
Courts in Victoria and New South Wales can, in appropriate cases, grant administration to an attorney acting for an executor who is outside the state. The grant is usually limited, and conditions such as security or the attorney’s residence may apply. The power of attorney needs to be drafted for this purpose and executed correctly.
Resealing a foreign grant
Where a grant has already been made in certain countries, it may be possible to reseal it in an Australian state rather than apply afresh. This is available only for some jurisdictions, and our separate article on overseas probate documents explains it.
An Australian licensed trustee company
Licensed trustee companies are regulated by ASIC under Chapter 5D of the Corporations Act and must hold an Australian financial services licence. Their traditional services include acting as executor, administrator, trustee, attorney or agent. A foreign trust company may choose to appoint one as its Australian agent or attorney, or one may become the administrator. Whether this suits a particular estate depends on its size, complexity and the client’s wishes.
Australian lawyers alongside
Whichever route is chosen, an Australian lawyer can advise the offshore executor or Australian agent without taking on the executor’s role.
Practical administration issues
Identifying and collecting Australian assets
Banks, share registries, land titles offices and super funds each have their own process. Superannuation generally does not automatically form part of the estate; the fund trustee pays it under the fund rules, any valid nomination and the law.
Notices to creditors and claims
Australian states allow executors to publish a statutory notice before distributing, which may protect them from personal liability for claims they did not know about. Family provision claims also have time limits, and the timing of distribution can affect an executor’s exposure.
Deceased estate tax returns
The ATO may require a date of death return for the deceased and trust tax returns for the estate. A beneficiary who is not an Australian tax resident is one of the factors that can require an estate return. The trustee’s own position, including whether tax is assessed to it on behalf of foreign beneficiaries, needs advice from a registered tax agent.
Selling Australian property
Under the foreign resident capital gains withholding rules, a purchaser of Australian real property may need to withhold an amount and pay it to the ATO unless a valid clearance certificate is provided. The residency of the estate and of the executor can matter, and some deceased estate transfers are treated differently, so this should be checked before contracts are signed.
Foreign beneficiaries and FIRB
An executor dealing with property under a Will generally sits differently from a foreign beneficiary who receives it. A foreign beneficiary acquiring an interest in Australian land may need foreign investment approval, and approval can carry conditions. This should be considered before any transfer is planned.
Distributing to offshore beneficiaries or offshore trusts
Payments overseas raise questions of currency conversion, bank AML and source-of-funds enquiries, and evidence of the beneficiary’s identity and entitlement. Receiving banks and trustees often ask for certified documents, and some need an apostille or legalisation.
Attorneys and agency roles for overseas principals
Overseas clients of trust companies may need someone in Australia to act for them while alive, for example under an Australian power of attorney for property or banking. Our separate article on powers of attorney for foreign clients discusses this. Where an ongoing agency role is needed, as executor, trustee or attorney, we can help the trust company consider whether an Australian licensed trustee company or a suitable individual should hold it, and refer the role where appropriate.
How we work with trust companies and professional executors
- Offshore trusts. We regularly advise on the Australian side of offshore trust structures, working alongside the trustee and the family’s lawyers in the trust’s home jurisdiction, who advise on that jurisdiction’s law.
- Scope letter. We agree in writing at the start what we will and will not do, who our client is, and how instructions are given.
- Confidentiality. We treat client and family information as confidential and agree how information is shared with other advisers.
- Single point of contact. One lawyer coordinates the Australian work and the dealings with registries, banks and the family’s accountant.
- Reporting. We agree a reporting rhythm that fits the trust company’s file reviews, with updates at key milestones.
- Notarisation. The firm’s notary public can notarise documents for use overseas.
- Bilingual documents. We advise in English, Mandarin and Cantonese, and can explain Australian documents to family members in Chinese.
- Credentials. Justin Chua trained in accounting (Bachelor of Commerce, accounting major), is an affiliate member of STEP (the Society of Trust and Estate Practitioners), and advises on the legal and tax structure of family wealth together. He is a Nationally Accredited Mediator and FDRP, and an Accredited Family Business Advisor.
Questions to discuss with Australian counsel
- In which states are the assets, and does each need its own grant?
- Can we take the grant ourselves, or should an attorney or Australian licensed trustee company act?
- What will receiving banks and trustees need before funds are paid?
Frequently asked questions
Can a foreign trust company apply for probate in Australia?
It may be possible, but it depends on the state, the Will and the company’s status. Many foreign executors instead act through an Australian attorney or licensed trustee company.
Can an Australian agent act for an overseas executor?
Courts in Victoria and NSW can, in appropriate cases, grant administration to an attorney of an executor outside the state, usually as a limited grant. The power of attorney must be suitable for the purpose, and other requirements may apply.
Is superannuation part of the Australian estate?
Not automatically. The fund trustee pays death benefits under the fund rules, any valid nomination and the law. It becomes estate property only if paid to the executor or administrator.
Every family’s situation is different, and the answer often turns on details. Book a consultation so we can review your documents and circumstances before you act.
How Chua Tan Associates can help
Chua Tan Associates, practising since 1990, acts as Australian legal adviser to foreign trust companies, professional executors and their Australian agents. We help identify the right way to act, prepare grant applications and powers of attorney, coordinate the collection of Australian assets, and work through tax, foreign investment and distribution issues with the family’s accountant and registered tax agents. We work with lawyers and advisers in Singapore, Malaysia, Hong Kong, mainland China, Taiwan and Indonesia, and assist clients across Australia and overseas.
Important: This article is general information only and must not be relied on. It is not legal, tax or financial advice, does not take your circumstances into account, and may not reflect changes in the law after publication. Laws of other countries may also apply. Do not act or refrain from acting on the basis of this article. Reading it or contacting us does not create a lawyer–client relationship. Please book a consultation for advice on your situation.
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Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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