A grant of probate allows an executor to wind up a specific estate in a particular country. Many of Britain’s dominions and colonies adopted the legal principles of ‘their old country’ as they evolved to full legal independence.
Resealing makes it potentially easier for executors to deal with assets in more than one commonwealth country. In simple terms, resealing probate involves having a court in another jurisdiction confirm the validity of the executorship in the country which granted it.
We found no historic evidence of where the term ‘resealing probate’ comes from, but we can surmise. In olden days courts affixed wax seals to documents declaring them official. So we assume including an additional jurisdiction would require another seal. What do you think?
Let’s Use a Practical Example to Understand the Process
Let’s imagine an Australian person passes away in England and leaves a legal will signed there. Their executor obtains a grant of probate and all is going well. That is, until their executor discovers the Australian had a bank account in Perth, Western Australia, and shares in a Perth company that is not listed on the UK stock exchange.
The executor needs to liquidate those assets in accordance with the will, and share the proceeds among several UK charities. However, neither the bank nor the stock exchange recognizes their authority under their UK probate. To add to their woes, there can only be one grant of probate per deceased estate.
A Drum Roll for Australian Law Coming to the Rescue
A grant of probate by a foreign court may not summarily be used to administer assets of a deceased estate in Australia, according to Robertson Hayles Lawyers in Perth. However, an Australian court may validate the foreign probate for use in that country.
If the Australian court ‘reseals’ the foreign probate, then that instrument can be used to collect, transfer and distribute the assets of the deceased held in Australia. Each territory and state there has its own rules. However, all recognise probates and letters of administration issued by courts in “Her Majesty’s Dominions”.
Britain allows a similar process in terms of the UK Colonial Probates Act of 1892. This “provides for the recognition by courts in the United Kingdom of Probates and Letters of Administration granted by courts in those countries or territories in the Commonwealth to which the Act has been applied by Order in Council”.
How to Go About Applying for a Reseal of Probate
An administrator / executor under a will, or appointed by a court may apply, as also may a beneficiary of the estate in the domicile of the deceased. In our example they would lodge their application with the probate court in Perth, Western Australia.
After the Western Australia court resealed the UK probate, the executor could then liquidate the bank account in Perth, and the shares in the Australian company. Resealing probate is as simple as that in theory, and as complicated as the law sometimes makes it in practice.