For example, the Lin family live in Melbourne. Mrs Lin's father lived in Shanghai for decades, with a flat and several bank accounts there, and a few years ago he also bought an investment apartment in Melbourne in his own name. After he dies, Mrs Lin finds herself dealing with two completely different legal systems: the Shanghai flat passes under mainland Chinese rules, while the Melbourne apartment first needs a grant from the Supreme Court of Victoria. Which side goes first? Which documents need to be notarised in Australia? What will a Chinese bank or real estate registry actually accept?
The reverse is just as common: parents living in Kuala Lumpur, Singapore or Hong Kong leave property or bank accounts in Melbourne, and the children have to deal with them here. This article uses Victoria as the base and walks through the main procedures for cross-border estates, and the order in which things usually need to happen.
1. First principle: each country deals with the assets located there
A grant of probate is not a document that works everywhere. Each country generally deals only with assets inside its own borders: Victorian land and bank accounts need authority from a Victorian court, while a Shanghai flat is dealt with by the mainland registry or courts. Who inherits, and in what shares, is a separate "choice of law" question. Under common law conflict rules, movable property generally follows the law of the deceased's domicile and land follows the law of the place where it is located. China's Law on the Application of Laws to Foreign-Related Civil Relations (Article 31) takes a similar approach for intestacy: the law of the deceased's habitual residence at death applies, except that immovable property follows the law of where it is located.
So whether one will can cover assets in both places, and whether one country's process will hold up the other, is best assessed as a whole before anything is lodged.
2. Probate or letters of administration in Victoria
Where there is a will, the executor applies for a grant of probate. Where there is no valid will, a close relative applies for letters of administration. Before applying, a notice of intention to apply must be published on the Supreme Court of Victoria's website, and the application can only be filed at least 14 days after that notice. Applications are filed through the Court's online system (RedCrest), and the original will must be sent to the Court.
A will made overseas may generally be accepted in Victoria if it meets the formal requirements of the relevant law, such as the law of the place where it was signed, but a Chinese-language will needs a proper translation, and affidavits about the translation and how the will was signed may also be required. Once the grant issues, banks release funds on production of it. Land is dealt with at Land Use Victoria: a sole interest or a share held as tenants in common is transmitted to the legal personal representative and then transferred to the beneficiaries, while property held as joint tenants passes to the surviving owner by an Application by Surviving Proprietor and generally does not form part of the estate.
3. A foreign grant already exists: can it be resealed in Victoria?
If a parent dies overseas and a local court has already issued a grant, section 81 of the Administration and Probate Act 1958 (Vic) allows grants from the United Kingdom, other Australian states and territories, and countries named by proclamation to be resealed in Victoria, giving them the same effect as a Victorian grant. On commonly used practice lists, grants from Hong Kong, Singapore, Malaysia and New Zealand are among those that can be resealed. You need the original grant, an exemplification, or a court-sealed certified copy.
Grants or succession documents from mainland China, Taiwan, Indonesia and similar places are generally not eligible for resealing in Victoria. In those cases a fresh Victorian grant is needed, for example letters of administration, or probate of a copy of the foreign will. Similar arrangements exist in the other direction: Malaysia's Probate and Administration Act 1959 (section 52), for example, allows grants from Commonwealth countries, including Australia, to be resealed, although the court has a discretion and local requirements apply.
4. Australian-resident heirs inheriting assets in mainland China
Since 1 January 2021, succession in mainland China has been governed by the Succession Book of the Civil Code. Without a will, the first-order heirs are the spouse, children and parents; the second order is siblings and grandparents (Article 1127). If a sibling died before the deceased, that sibling's children can inherit in their place (Article 1128). Where there are several inconsistent wills, the last one prevails (Article 1142), so a notarised will no longer automatically takes priority. The Code also introduced the role of an estate administrator (Article 1145).
In practice, registering an inheritance of real estate generally requires the death certificate, the will or an agreement among all statutory heirs on how the property is divided, and proof of the family relationship. Notarised materials or an effective court judgment can be submitted instead. Succession notarisation is not mandatory in every case, but many institutions still ask for it, and it usually needs the cooperation of every heir. For bank accounts, since 1 June 2024 first-order heirs can use a simplified process to withdraw small balances of up to RMB 50,000 in total from a deceased depositor's accounts. Larger amounts usually still need a notarial or court document. Where heirs disagree, the matter has to be resolved through court proceedings or mediation.
5. Signing in Australia for use overseas: notarisation and apostilles
Heirs living in Australia often need to sign powers of attorney, statutory declarations or renunciations, or provide certified copies of passports, birth certificates and marriage certificates. Since 7 November 2023 the Apostille Convention has applied between China and Australia: once an Australian notary public has notarised the document, an apostille from the Department of Foreign Affairs and Trade (DFAT) allows it to be used in mainland China, without legalisation by a Chinese consulate. The Chinese consulate has noted, however, that an apostille does not guarantee the receiving organisation will accept the document, so it pays to confirm their format and content requirements first.
Singapore, Hong Kong and Indonesia also accept apostilles. Malaysia has not yet joined the Convention, so documents generally still go through consular legalisation, and Taiwan does not use apostilles either and has its own document verification process. Requirements change from time to time, so check them again before you start.
6. Time limits and sequencing
In Victoria, a family provision claim against an estate generally has to be made within six months of the grant. If an executor distributes before then and a claim is later made, the executor can be personally liable, so it is generally wise to wait the full six months, or obtain written consent from everyone who might claim, before distributing.
The most common problem in cross-border estates is one country waiting on the other's paperwork. A sensible order is usually: obtain the death certificate and list the assets in each country; work out at the same time which grants can be resealed and which need a fresh application; prepare all the documents that need notarising and apostilles in Australia in one batch to avoid repeated rounds; and only then deal with moving funds and tax reporting.
Practical checklist
- Original death certificate and an accredited translation
- The original will (and any later wills or codicils); check whether more than one exists
- A list of assets in each country: how land is held (sole, tenants in common or joint tenants), bank accounts, shares and insurance
- ID and proof of relationship for every heir (birth and marriage certificates, household registration or kinship notarial certificates)
- The original or a certified copy of any foreign grant, or confirmation that a fresh Victorian application is needed
- Confirm format requirements with the receiving institution, then have documents notarised and apostilled in Australia in one batch
- Diarise the six-month family provision period and do not distribute before it ends
Frequently asked questions
My father's succession was notarised in China. Do we still need to apply in Victoria for his Melbourne property?
Usually yes. A mainland Chinese succession notarial certificate or court document cannot be resealed in Victoria, so the Melbourne property will generally need a fresh Victorian grant of probate or letters of administration. The Chinese documents can be used as evidence but do not replace the Victorian grant.
My mother died in Singapore and probate was granted there. Can it be used in Victoria?
Not directly, but it can generally be resealed in Victoria. You will need the original grant, an exemplification or a court-sealed certified copy, and must follow the Supreme Court of Victoria's procedures.
I live in Melbourne and can't travel to China. Can I still deal with the inheritance there?
In many cases, yes. You can sign a power of attorney in Australia, have it notarised and apostilled, and appoint a relative or lawyer in China to act for you. Some institutions may still require attendance in person or a particular format, so check first.
My parent and I own the Melbourne property as joint tenants. Do we need probate?
Property held as joint tenants generally passes directly to the surviving owner through an Application by Surviving Proprietor, usually without probate. If the deceased had other assets in Victoria, a grant may still be needed for those.
How long does probate take in Victoria?
You must wait at least 14 days after the notice is published before filing. How long the Court then takes depends on the case and its workload, and longer if the Court raises requisitions. Foreign wills and translations usually add preparation time.
Cross-border estates usually need lawyers, a notary and accountants in both countries working together. Chua Tan Associates has practised in Melbourne since 1990, works in Mandarin, Cantonese and English, and regularly handles estates and succession matters between Australia, Greater China and Southeast Asia. Our notary public, Kin Wee Chua, can notarise documents for use overseas. Justin Chua is a STEP affiliate member and a Nationally Accredited Mediator, and can help families resolve disagreements about an estate through mediation. Call us on 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
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This article is general information only and is not legal advice.
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