Many families have one foot in Australia and another in Asia. A father retires to Penang but keeps his apartment in Box Hill. A mother living in Hong Kong has a term deposit in Sydney. A grandparent who moved back to Shanghai still holds Australian shares bought decades ago. When that person dies overseas, the family is left asking how to deal with the Australian side of the estate from a distance.
The process is manageable, but it differs from a death in Australia in several ways: the death certificate is foreign, the executor may live abroad, the law of more than one country may apply, and the family must work out which Australian state to deal with. This article explains each step.
Foreign death certificates and translation
Australian courts and institutions will need proof of death. Where someone dies overseas, this is the death certificate or equivalent record issued in that country. Points to keep in mind:
- Obtain several original or officially certified copies. Australian banks, share registries, super funds and the court may each want one.
- If the certificate is not in English, it must be accompanied by an English translation. Courts generally expect the translator to verify the translation by affidavit or certificate, and many institutions ask for a NAATI certified translator.
- Some institutions want the certificate apostilled or otherwise authenticated in the country where it was issued. China, Hong Kong, Indonesia and Singapore are parties to the Apostille Convention. Malaysia is not, so Malaysian documents generally need legalisation.
- If no formal certificate exists, for example because of local practice, other evidence of death such as hospital, cremation or household registration records may be used, with an explanation in an affidavit.
Which state’s court?
Australia does not have a single national probate court. Each state and territory Supreme Court grants probate for property within its jurisdiction. Where the deceased lived overseas, the usual starting point is the state where the Australian assets are located.
- If all the Australian assets are in Victoria, the application is usually made to the Supreme Court of Victoria.
- If there is land in more than one state, a grant from one state can be resealed in the others, or separate grants may be obtained.
- Bank accounts and shares may be accepted by the institution on a grant from any Australian state, but land must be dealt with under the law of the state where it is located.
Domicile: movables versus immovables
Under the general rules of private international law that Australian courts apply:
- Immovable property (land and buildings) is governed by the law of the place where it is located. An apartment in Melbourne passes under Victorian law, whether or not there is a Will.
- Movable property (bank accounts, shares, cash and personal belongings) is generally governed by the law of the deceased’s domicile at death, meaning the country the deceased treated as their permanent home.
This matters most where there is no Will. If someone domiciled in Malaysia dies without a Will, their Melbourne apartment may pass under the Victorian intestacy rules, while their Australian bank account may pass under Malaysian law. The two sets of rules can give different results. Domicile is a legal concept, not simply where the person lived last, and it can be disputed where someone moved between countries late in life.
Where there is a Will, Australian law will generally recognise it if it was validly made under the law of the place it was signed, the deceased’s domicile, habitual residence or nationality, or (for land) the place where the land is.
Is an Australian grant needed?
Not always. It depends on what the Australian assets are and what each institution requires.
- Land: to sell or transfer real estate, an Australian grant (or a resealed grant) is almost always required.
- Bank accounts: for smaller balances, many banks release funds on a death certificate, evidence of entitlement, a statutory declaration and an indemnity. Each bank sets its own threshold and requirements.
- Shares: share registries have similar thresholds, above which a grant is required.
- Superannuation: super is not automatically part of the estate. The fund trustee pays it according to any binding nomination or the fund rules, and may pay a dependant directly without a grant.
If an overseas grant exists, check whether it can be resealed in the relevant state. Grants from some Commonwealth countries can be resealed in some states, and each state keeps its own list. Otherwise, a fresh Australian grant is needed, with the overseas documents as evidence.
Executors who live overseas
An executor living overseas can apply for an Australian grant, although it adds steps: affidavits sworn abroad must be witnessed by an authorised person (often a notary or an Australian consular officer), and originals must be sent to Australia. Alternatively, the executor can appoint an attorney in Australia to apply for and administer the estate on their behalf, which is common where the executor is elderly or busy.
There is also a tax consequence. An estate is generally a resident trust estate for Australian tax purposes if it has at least one Australian resident trustee or its central management and control is in Australia. An estate administered entirely by executors abroad may be treated as a non-resident trust estate, which can affect how its Australian income and capital gains are taxed. Accounting advice should be obtained early.
The practical sequence
- Secure documents: obtain certified copies of the foreign death certificate, the original Will (and any other Wills in other countries) and identification for the executor.
- Translate and authenticate: arrange NAATI certified translations and any apostille or legalisation needed.
- List Australian assets: record each asset, its state and approximate value, and any debts.
- Contact each institution: ask what they need to release or transfer the asset, and whether a grant is required.
- Decide on the grant: reseal of an overseas grant, a fresh Australian grant, or no grant where none is needed.
- Coordinate with the overseas administration: make sure the Australian and overseas processes do not conflict, especially where there are several Wills.
- Deal with tax: lodge any final Australian return for the deceased and trust returns for the estate, and consider foreign resident withholding if Australian land is sold.
- Distribute: pay debts, then distribute, keeping records for beneficiaries in each country.
Frequently asked questions
What happens if the deceased died overseas with Australian assets?
The Australian assets must still be collected under Australian rules. Depending on their value and type, this may require an Australian grant or a resealed overseas grant, and land almost always does. The overseas Will and death certificate are used as evidence.
Can I use an overseas death certificate in Australia?
Yes. It must be an original or certified copy, and if it is not in English, it must have a verified English translation. Some institutions also require an apostille or legalisation.
Which state do I apply to if the deceased lived overseas?
Usually the state where the Australian assets, particularly land, are located. If there is land in several states, a grant from one state can often be resealed in the others.
Can an executor who lives overseas apply for probate in Australia?
Yes. The executor can apply from overseas, with documents sworn before an authorised witness, or appoint an attorney in Australia to apply. The tax residency of the estate should also be considered.
How Chua Tan Associates can help
We act for families whose relatives died in Malaysia, Singapore, Hong Kong, mainland China, Taiwan, Indonesia and elsewhere leaving assets in Australia. We work out which state to apply in and whether a reseal or fresh grant is needed, deal with Australian banks and registries, and coordinate with lawyers handling the overseas estate. Our notary public can prepare documents that must go back overseas, and we work with executors and families in English, Mandarin and Cantonese, wherever they live.
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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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