Many parents in Australia name a child as executor, and that child may now live in Singapore, Hong Kong, Shanghai or Kuala Lumpur. When the parent dies, the first question is often a simple one: can I still be the executor if I do not live in Australia?
In most cases the answer is yes. Living overseas does not disqualify an executor. But it does change how the probate application is made, who signs what and where, and how long things take. This article explains the main options in Victoria and New South Wales, and the practical steps for an executor managing an Australian estate from abroad.
Can a non-resident executor apply for probate?
Generally, yes. The Supreme Court of Victoria states that a person who lives outside Victoria can apply for a grant of representation. In New South Wales, the Supreme Court’s probate checklist says executors may apply even if they are outside NSW, including outside Australia, but they must give an address for service in NSW. In practice, that is usually the address of the Australian lawyer handling the application.
A grant from one state covers assets in that state. If the deceased had assets in more than one state, a separate application or a reseal may be needed. The rules in Queensland, Western Australia, South Australia, Tasmania and the territories differ in detail, so check the local requirements where the assets are.
Bonds and sureties: when security may be required
Historically, Australian courts protected beneficiaries and creditors by requiring some applicants to give security, such as a guarantee or bond supported by sureties. The general position is:
- Executors applying for probate are usually not asked for a guarantee or bond, because the will-maker chose them.
- Administrators are treated differently. In Victoria, the Probate Office requires a surety guarantee in certain applications, including where administration is granted to an attorney acting for an executor who lives outside Victoria. In NSW, an administration bond with sureties is required in some administration applications, although the Court’s checklist explains that it can be dispensed with in certain circumstances, such as where adult beneficiaries are notified.
The requirements depend on the type of grant, who the beneficiaries are, and whether any are minors or lack capacity. If security is needed, your lawyer should raise it early, because finding suitable sureties can take time.
Appointing an attorney to apply for you
An overseas executor who does not want to manage the application personally can appoint someone in Australia under a power of attorney to apply instead. The attorney then obtains a grant known as letters of administration with the will annexed for the use and benefit of the executor.
- Victoria: where the sole executor lives outside Victoria, the Probate Office’s guidance says administration may be granted to an attorney under a specific power. The power of attorney (original or a certified copy) is exhibited to the attorney’s affidavit, and a surety guarantee is filed. The grant is generally limited until the executor obtains a grant, or as the Registrar directs.
- NSW: section 72 of the Probate and Administration Act 1898 allows administration to be granted to the attorney of a person who is out of NSW. The Court’s administration checklist states that the attorney must be resident in NSW.
This route suits executors who cannot easily sign documents before an authorised witness overseas, or who want a trusted person on the ground. The power of attorney must be drafted for this purpose and signed correctly. A general power of attorney prepared for other uses may not be accepted.
Renouncing, or reserving the right to apply later
An executor who does not want the role at all can renounce. In NSW, the approved form is UCPR Form 123, and the Court will not accept a renunciation once a grant has been made. In Victoria, an executor who has not intermeddled in the estate can renounce using the renunciation form with an affidavit of verification, and a lawyer should explain its effect before witnessing it.
Renunciation is usually final, so think carefully. If the will names an Australian-based co-executor, a better option may be for that person to apply alone while the overseas executor reserves the right to apply later. NSW calls this leave reserved and uses an affidavit from the non-applying executor. Victoria also recognises grants made with leave reserved to other executors. This keeps the overseas executor’s role available if circumstances change.
Signing documents overseas
A probate application involves sworn or affirmed documents, usually an affidavit from the applicant. When the applicant is overseas:
- The affidavit must be sworn before a person authorised under the law of the Australian state concerned. Overseas, this is commonly a notary public or an Australian consular officer at an embassy or consulate.
- Some documents may also need an apostille or consular legalisation, depending on the country and who will rely on the document. Mainland China joined the Apostille Convention with effect from 7 November 2023, which simplified this for many documents from China.
- Foreign-language documents usually need a certified English translation.
Before booking a notary, confirm with the Australian lawyer exactly what wording, exhibits and certification are required. A document returned for a technical defect can cost weeks.
Practical timing
An overseas executor should expect the process to take longer than for a local one.
- Advertising: in Victoria, the notice of intention to apply is published on RedCrest-Probate, and you must allow at least 15 days before filing. In NSW, at least 14 days’ notice must be published on the NSW Online Registry before the summons is filed.
- Delay explanations: NSW requires an explanation if the application is filed more than six months after death. Victoria requires one if more than three years have passed.
- Documents: allow time for notarisation, couriers and any apostille. The original will must also be located and produced.
- After the grant: banks, share registries and land registries each have their own processes. Some institutions also apply stricter rules to estate representatives living overseas.
Checklist for an executor living overseas
- Find the original will and obtain the death certificate.
- List the Australian assets and the state each one is in.
- Decide on your route: apply yourself, appoint an attorney, apply with a co-executor while reserving leave, or renounce.
- Engage an Australian lawyer to provide the address for service and prepare the documents.
- Arrange a notary public or consular appointment for signing, and check whether an apostille is needed.
- Budget extra time for couriers, advertising and the court’s review.
- Plan how you will deal with bank accounts, property and tax once the grant issues.
Frequently asked questions
Can an executor live outside Australia?
Yes. Australian law does not prevent a person overseas from being an executor. In Victoria and NSW, an overseas executor can apply for probate, although NSW requires an address for service in NSW. The practical challenge is signing and coordinating documents from abroad.
Can a non-resident executor get probate in NSW?
Yes. The Supreme Court of NSW’s checklist states that executors outside Australia can apply, provided they give an NSW address for service. Alternatively, the executor can appoint an NSW-resident attorney to apply under section 72 of the Probate and Administration Act 1898.
Can someone apply for probate on my behalf with a power of attorney?
Yes, through a grant of administration with the will annexed made to your attorney. In Victoria a surety guarantee is generally required for this type of grant, and in NSW the attorney must be resident in NSW.
What if I don’t want to be the executor?
You can usually renounce before a grant is made, as long as you have not already started dealing with the estate. If there is a co-executor in Australia, reserving the right to apply later may be a more flexible option.
How Chua Tan Associates can help
Chua Tan Associates acts for executors who live outside Australia and need to administer an Australian estate. We can explain the options, prepare the probate or administration application, provide the Australian address for service, and prepare powers of attorney, renunciations or affidavits reserving leave. Our notary public can advise on how documents should be signed and certified, and we work with local lawyers and notaries in the executor’s country so the paperwork is right the first time. We assist clients across Australia and overseas, and advise in English, Mandarin and Cantonese.
Related reading
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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