A relative has died in China, Taiwan, Malaysia or Indonesia. The family has already been through the local process: a notary has issued an inheritance certificate, a court has made an order, or a grant has been issued. Then someone remembers the bank account in Melbourne, the shares on the ASX or the apartment in Sydney. The natural question is whether the paperwork already obtained overseas will be enough in Australia.
Sometimes it helps a great deal. Often it is not enough by itself. Australian courts, banks and land registries each have their own requirements, and the answer depends on the type of overseas document, the country it came from and the value and type of the Australian asset.
Common overseas documents
Chinese inheritance notarial certificates
In mainland China, an inheritance is usually confirmed by an inheritance notarial certificate (继承权公证书) issued by a Chinese notary office, or by a People’s Court judgment where the heirs disagree. These documents identify the heirs under Chinese law, but they are not grants of probate or letters of administration. An Australian court will not reseal them. They can, however, be valuable evidence in an Australian application, for example to show who the next of kin are or that the family has agreed how the estate is to be shared.
Taiwanese documents
Taiwan does not have a probate grant system like Australia’s. Heirs generally establish their entitlement through household registration records, an heirship table, tax clearance for estate tax and, where needed, a notarised division agreement or a court decision. Like Chinese certificates, these documents are evidence rather than grants that can be resealed.
Malaysian grants
Malaysia, like Australia, uses grants of probate and letters of administration, issued by the High Court, and for smaller estates there are also orders under the small estates legislation. A Malaysian grant is the closest equivalent to an Australian grant of the documents discussed here. Whether it can be resealed depends on the Australian state where the assets are.
Indonesian documents
Indonesian heirs typically rely on a statement or certificate of heirship, which may be issued by a notary, by local government officials, or by a court determination, depending on the family’s background and the asset. These are not grants and cannot be resealed in Australia, but they can support an Australian application.
Resealing versus a fresh grant
Resealing means an Australian Supreme Court puts its seal on a grant made elsewhere, giving it the same effect as a local grant. It is usually quicker than starting again because the overseas court has already examined the Will and the executor’s appointment.
Resealing is only available for grants from certain places, and each state sets its own list. In New South Wales, the Supreme Court currently reseals grants from other Australian states and territories and from Commonwealth realm countries such as the United Kingdom and New Zealand. The NSW Court has specifically said that recent grants from places such as Hong Kong, India and South Africa cannot be resealed there. Other states have different rules, so a grant that cannot be resealed in one state may be accepted in another. Notarial certificates and heirship statements cannot be resealed anywhere in Australia because they are not grants.
Where resealing is not possible, the usual alternative is a fresh Australian grant. Depending on the circumstances this may be:
- probate of a copy of the Will, where the original is held by an overseas court;
- letters of administration with the Will annexed, for example where the executor will not or cannot act; or
- letters of administration on intestacy, where there is no Will.
The overseas documents then become supporting evidence for the fresh application.
Evidence of foreign law
Where an Australian court must decide a question that turns on overseas law, such as whether a Will is valid under the law of the place where it was made, or who the heirs are under Chinese or Indonesian law, it may require evidence of that law. This is usually given by an affidavit of foreign law sworn by a lawyer qualified in that country, explaining the relevant rules and how they apply to the facts. The affidavit must be carefully prepared, as the Australian court relies on it to understand law it does not itself apply every day.
Certified translations
Any document not in English must be accompanied by an English translation. Courts generally require the translator to swear an affidavit or make a certificate confirming the translation is accurate, and many banks ask for a translation by a NAATI certified translator. A translation prepared by a family member, however fluent, is rarely accepted. The original document, or a properly certified copy, usually needs to be produced with it.
Do Australian banks accept overseas documents?
Banks, share registries and super funds set their own requirements. For smaller balances, some institutions will release funds on the strength of a death certificate, an overseas document showing entitlement, a statutory declaration and an indemnity, without an Australian grant. For larger amounts, they usually ask for an Australian grant or a resealed grant. Land is different: to transfer or sell real estate, the land titles office will almost always require an Australian grant or reseal.
Overseas documents produced to Australian institutions may also need to be authenticated. China and Indonesia are members of the Apostille Convention, so documents from those countries can usually be apostilled. Malaysia is not a member, and Malaysian documents generally go through legalisation instead. For Taiwanese documents, authentication through the appropriate representative office is generally needed. Check what each institution wants before obtaining documents, so that nothing has to be done twice.
Practical steps
- List all Australian assets, the state where each is located and its approximate value.
- Gather the overseas grant, notarial certificate or court order, the Will, the death certificate and evidence of family relationships.
- Ask each Australian institution what it requires. Some smaller holdings may be released without a grant.
- If a grant is needed, check whether the overseas grant can be resealed in that state, or whether a fresh grant is required.
- Arrange certified English translations and any apostille or authentication.
- Where foreign law matters, engage a lawyer in that country to prepare an affidavit of foreign law.
Frequently asked questions
Can a Chinese notarial certificate be used in Australia?
It can be used as evidence, but it is not a grant of probate and cannot be resealed. Banks may accept it for small balances. For land or larger assets, a fresh Australian grant is usually needed.
Can a Malaysian grant of probate be resealed in Australia?
It depends on the state. Each Supreme Court has its own list of countries whose grants it will reseal, and these have changed over time. If resealing is not available, a fresh grant can be sought with the Malaysian grant as evidence.
Do overseas documents need to be translated for an Australian court?
Yes. Any document not in English must be accompanied by an accurate English translation, verified by the translator. Many institutions also ask for NAATI certified translations.
What is an affidavit of foreign law?
It is sworn evidence from a lawyer qualified in another country explaining how that country’s law applies, for example to the validity of a Will or who the heirs are. Australian courts may require it where the overseas law affects the outcome.
How Chua Tan Associates can help
We act for families claiming Australian assets on the strength of documents from China, Taiwan, Malaysia, Indonesia and elsewhere in Asia. We review the overseas documents, advise whether a reseal or a fresh grant is the better path in the relevant state, and work with local lawyers abroad to obtain affidavits of foreign law and the right supporting papers. Our notary public can handle documents that need to go back overseas, and we work in English, Mandarin and Cantonese, which helps when documents and family members span several languages.
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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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