When a Hong Kong resident dies owning a Melbourne apartment, an Australian bank account or Australian shares, the Hong Kong grant of probate or letters of administration does not on its own give the executor authority to deal with those assets. In Victoria, a Hong Kong grant can usually be resealed by the Supreme Court of Victoria, which gives it the same effect as a Victorian grant. Not every Australian state accepts Hong Kong grants for resealing, however, and in some estates a fresh Australian grant is the better route. The same questions arise in reverse when an Australian resident dies with assets in Hong Kong.
Why a Hong Kong grant is not enough on its own
A grant of representation is a court order that confirms who has authority to collect and distribute a deceased person’s assets. Its authority is territorial. A grant issued by the High Court of the Hong Kong SAR authorises the executor to deal with assets in Hong Kong, but Australian banks, share registries and the land titles office will require an Australian grant, or a foreign grant that has been resealed in the relevant Australian state, before they will release or transfer significant assets.
The Supreme Court of Victoria’s own guidance makes the point directly: a grant made by a court outside Victoria does not authorise dealing with Victorian assets. Once resealed, the grant is as effective in Victoria as if it had been made there.
Smaller assets are sometimes released without any Australian grant. Some banks will pay out a modest balance on production of the foreign grant, a death certificate and an indemnity, under their own internal limits. Land is different. A Victorian property cannot be transferred out of the deceased’s name without a Victorian grant or a resealed grant. We explain the general position in When the Deceased Died Overseas With Australian Assets.
Can a Hong Kong grant be resealed in Victoria?
Yes. Resealing in Victoria is governed by Part III of the Administration and Probate Act 1958 (Vic). Section 81 allows grants made in the United Kingdom, in the other Australian states and territories, and in New Zealand to be resealed. Section 88 allows the resealing provisions to be extended, by proclamation, to grants made in other countries. The proclamation in force includes Hong Kong, along with Singapore, Malaysia and several other jurisdictions. Hong Kong in turn lists Victoria among the places whose grants it will reseal, so recognition runs both ways.
Resealing is generally quicker and simpler than a fresh grant, because the validity of the Will and the executor’s entitlement have already been decided by the Hong Kong court.
What a Victorian reseal application involves
Applications are filed electronically through the Court’s RedCrest-Probate system. In outline:
- Obtain the Hong Kong grant in a form the Court will accept. The Court requires the original grant, an exemplification, or a copy of the grant sealed and certified by the issuing court. A photocopy certified by a notary is not sufficient. Where the grant was issued with a Will annexed, the copy should include the Will.
- Advertise the intended application on the Supreme Court’s online probate advertisement system. Since 2013, reseal notices have been published online rather than in a newspaper. The Court’s current guidance is to publish the notice at least 15 days before applying.
- Prepare the supporting affidavit and an inventory of the deceased’s Victorian assets and liabilities. The application may be made by the executor or administrator personally, by an Australian lawyer acting on their instructions, or by an attorney appointed under a power of attorney.
- Arrange translations where the grant or Will is in Chinese. A Hong Kong grant issues in the language of the application (Chinese or English), so a Chinese-language grant will need a certified English translation.
- File and pay the Court fee. Victorian probate fees vary with the value of the estate in Victoria.
Once the grant is resealed, the executor deals with Victorian assets in the same way as a Victorian executor: closing accounts, transferring or selling shares, and registering a transmission of land at Land Use Victoria before transferring or selling the property.
Resealing in other Australian states
Each state and territory has its own resealing legislation and its own list of eligible jurisdictions. The position for Hong Kong is not uniform.
| Jurisdiction | Hong Kong grants |
|---|
| Victoria | Can be resealed (Administration and Probate Act 1958, Part III; Hong Kong is a proclaimed country) |
| New South Wales | Cannot be resealed. Under s 107 of the Probate and Administration Act 1898 (NSW), the Court reseals grants from Commonwealth realms. The Court’s guidance lists recent Hong Kong grants as not resealable. A new NSW grant is usually required if there is NSW real estate. |
| Queensland, South Australia, Tasmania, Western Australia, the ACT and the NT | Each has its own list of eligible countries. Whether a Hong Kong grant qualifies must be checked against the current legislation and court requirements before the papers are prepared. |
Where the deceased had real estate in more than one state, the executor may need a reseal in one state and a fresh grant in another.
When a fresh Australian grant is needed instead
A reseal is not always available or advisable. An original Victorian grant may be needed, or preferable, where:
- There is no Hong Kong grant. If the family has dealt with Hong Kong assets without a grant, or the only Hong Kong assets passed by joint names, there is nothing to reseal.
- The deceased was not domiciled in Hong Kong. A Hong Kong resident who was domiciled in mainland China or elsewhere may raise questions about which grant should lead. These cases need individual advice.
- There is a separate Australian Will. Many Hong Kong families keep one Will for Hong Kong assets and another for Australian assets. If the Australian Will deals with Australian assets, the executor applies for probate of that Will in Victoria. The Hong Kong grant of the Hong Kong Will is not resealed for those assets.
- The grant is limited. Some grants are limited in time, purpose or property, and may not be suitable for resealing.
- The Australian assets are in a state that will not reseal Hong Kong grants, such as New South Wales.
Where a fresh Victorian grant is required and the Will was made in Hong Kong, the original Will is usually held by the Hong Kong Probate Registry, so the application proceeds on an exemplified or court-certified copy. The Court may also require evidence that the Will was validly executed under Hong Kong law. A Will made in Hong Kong in English, signed and witnessed in the conventional way, generally presents fewer difficulties than a Will made in Chinese or under another legal system. We discuss these issues in A Will Made in China or Taiwan and Assets in Australia.
The Hong Kong side: general points
We work alongside Hong Kong solicitors, who advise on Hong Kong law. In general terms:
- Grants are issued by the Probate Registry of the High Court under the Probate and Administration Ordinance (Cap 10). An application can be made through a Hong Kong solicitor, or in person by appointment with the Registry’s Public Application Section.
- Estate duty was abolished for deaths on or after 11 February 2006. For those deaths, estate duty clearance papers are no longer needed before a grant is applied for. For earlier deaths, the old estate duty procedures may still apply.
- Australian grants can be resealed in Hong Kong only if they come from a listed place. The Ordinance’s list includes Victoria, Tasmania, South Australia and the Northern Territory. A grant from New South Wales, Queensland or Western Australia is not resealable in Hong Kong, so a separate Hong Kong grant would be needed.
- Intestacy follows Hong Kong rules for Hong Kong assets where the deceased was domiciled in Hong Kong. Those rules differ from the Victorian intestacy rules.
Where an Australian resident dies with a Hong Kong bank account, Hong Kong shares or a flat in Hong Kong, the executor will often first obtain a Victorian grant, then have it resealed in Hong Kong through a Hong Kong solicitor. We coordinate the Australian grant and the documents that the Hong Kong solicitor requires.
Assets typically involved
| Asset | How it is usually dealt with |
|---|
| Melbourne apartment or house | Victorian grant or reseal required. Transmission to the executor, then sale or transfer to the beneficiary. |
| Australian bank accounts and term deposits | Released to the executor on production of the grant, or sometimes without one if the balance is within the bank’s limit. |
| Australian listed shares | Transmitted by the share registry on production of the grant. They can then be sold or transferred. |
| Superannuation | Not automatically part of the estate. The fund pays the death benefit under the fund rules and any valid nomination. See Your Superannuation Is Not Automatically Part of Your Estate. |
| Property held as joint tenants | Passes to the surviving joint owner outside the Will. No grant is needed for that asset. |
Australian tax and FIRB for Hong Kong families
Australia has no inheritance tax or estate duty. That does not mean an estate is free of Australian tax. The following rules commonly arise. The right answer always depends on the facts, and advice from an Australian accountant or tax adviser should be obtained.
- Capital gains tax. Death itself is generally not a CGT event. The beneficiary or executor usually inherits the deceased’s cost base, and tax arises when the asset is later sold. Australian real property remains taxable Australian property in the hands of foreign residents.
- Main residence exemption. For disposals after 30 June 2020, the main residence exemption is generally not available where the deceased was a foreign resident for tax purposes at the time of death, subject to a narrow “life events” test. A Hong Kong resident’s Melbourne apartment will often fall into this category. See Inherited Property and the 2-Year Rule.
- Foreign resident beneficiaries. Where an Australian-resident deceased leaves assets that are not taxable Australian property (for example, many listed share holdings) to a foreign resident beneficiary, CGT event K3 can bring a capital gain into the deceased’s final return. See Capital Gains Tax and Overseas Beneficiaries.
- Foreign resident capital gains withholding. On a sale of Australian real property, the buyer must withhold an amount for the ATO unless the seller provides a clearance certificate. Executors of foreign-resident estates should plan for this before the property is listed.
- FIRB. Since 1 January 2021, a foreign person who receives an interest in Australian residential land under a Will is no longer automatically exempt from the foreign investment framework. Approval may be needed before the property is transferred to the beneficiary. An acquisition under the intestacy rules, or by an executor in a representative capacity, is generally treated differently. Approvals can carry conditions, and the temporary ban on foreign persons buying established dwellings, which runs from 1 April 2025 to 30 June 2029, makes early advice more important.
- State taxes. Victorian land tax, including surcharges for absentee owners, can continue to apply while the estate is being administered.
Executors living in Hong Kong: practical points
- Signing Australian documents in Hong Kong. Affidavits for a Victorian court can be sworn outside Australia, but they must be sworn before a person authorised to take them. A Hong Kong notary public or an Australian consular officer is usually appropriate, and the requirements should be confirmed before signing.
- Identity checks. Banks and real estate agents will need certified identity documents for the executor, and sometimes for beneficiaries. Expect verification under Australia’s anti-money laundering rules.
- Paying beneficiaries overseas. Distributions to Hong Kong are made by international transfer. Allow time for bank compliance checks and keep a clear record of the estate’s sources of funds.
A typical situation
Consider a typical situation. A widow living in Hong Kong dies leaving a flat in Hong Kong, a Melbourne apartment once used by her children while studying, and an Australian bank account. Her English-language Will, made in Hong Kong, leaves everything to her three children, two in Hong Kong and one in Melbourne. Her eldest son, the executor, obtains a grant of probate in Hong Kong. Because the apartment is in Victoria, a Victorian lawyer arranges an exemplified copy of the Hong Kong grant, advertises and files the reseal application, and once it is resealed registers the transmission of the apartment. Before deciding whether to sell the apartment or transfer it to the children, the family obtains tax advice on CGT and advice on whether FIRB approval is needed for the children living in Hong Kong. Each step is routine, but the order matters.
Common mistakes
- Sending the Australian bank a notarised photocopy of the Hong Kong grant and expecting it to be accepted for a large balance or for land.
- Assuming a Hong Kong grant can be resealed in every Australian state. It cannot be resealed in New South Wales.
- Applying for a Hong Kong grant when the deceased’s only Hong Kong asset was jointly owned, then finding there is no grant to reseal in Australia when one is needed.
- Transferring an apartment to an overseas beneficiary without considering FIRB and CGT.
- Not coordinating separate Hong Kong and Australian Wills, so that one inadvertently revokes the other.
Planning ahead
For a Hong Kong resident with Australian assets, a separate Australian Will limited to Australian assets, made alongside a Hong Kong Will limited to Hong Kong assets, can allow both estates to be administered at the same time without either waiting for the other. It also keeps the full extent of the family’s wealth out of each court’s file. Each Will should expressly preserve the other.
How we can assist
We act for executors and administrators resealing Hong Kong grants in Victoria and applying for fresh Australian grants where a reseal is unavailable, and we coordinate with Hong Kong solicitors when a Victorian grant must be resealed in Hong Kong. We also prepare Australian Wills for Hong Kong families that work alongside their Hong Kong Wills, and work with the family’s accountants on the tax and FIRB aspects of distributing Australian assets.
Related reading
Chua Tan Associates acts for families and their professional advisers on Australian legal matters with a cross-border dimension, working alongside lawyers and tax advisers in mainland China, Taiwan and Hong Kong. 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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