Managing Estates Where Property Is Outside Western Australia – The Resealing Process

For some, managing a deceased estate can be accompanied by complicated legal and administrative responsibilities. These responsibilities can become even more difficult to navigate where the deceased person held assets across multiple jurisdictions. However, if a grant of probate or letters of administration (a “Grant”) has already been obtained in another state or overseas, it may not be necessary to apply for a fresh Grant in Western Australia. In some cases, the existing Grant can instead be recognised through a process known as re‑sealing.

What is Re‑Sealing of a Grant of Probate or Administration

Re‑sealing is the process by which the Supreme Court of Western Australia formally recognises a Grant issued by a court in another jurisdiction. Once re‑sealed, the original Grant has the same force and effect as if it had been granted in Western Australia, allowing the executor or administrator to deal with assets situated in Western Australia without obtaining a new Grant. This enables the efficient administration of estates across jurisdictions and avoids unnecessary duplication of costly (and time consuming) legal processes. Without a re‑sealed Grant, some financial institutions, and especially Landgate, the land registry in Western Australia, will not ordinarily recognise a foreign or interstate Grant, preventing the executor or administrator from collecting, managing, or distributing estate assets within Western Australia.

The Categories of Re‑Sealing Applications

The approach taken by the Supreme Court when determining whether to reseal a Grant depends on the jurisdiction in which the original Grant was issued. If the Grant was issued by the Supreme Court of another Australian state or territory, the process is usually straightforward. By contrast, if a Grant was issued by a court outside Australia, but from a recognised common law jurisdiction historically referred to as “Her Majesty’s Dominions”, the Supreme Court may impose conditions upon resealing a Grant – including that a personal guarantee be given by an executor or administrator to whom the resealed Grant is issued.

Limits on Re‑Sealing

The Supreme Court’s power to re‑seal is not unlimited. Pursuant to the Administration Act 1903 (WA), re‑sealing is confined to Grants issued by courts within Her Majesty’s Dominions. Grants issued in countries outside Her Majesty’s Dominions cannot be re‑sealed in Western Australia. In those circumstances, a fresh application for a Grant must be made in Western Australia. If you are unsure whether your Grant was issued by a jurisdiction within Her Majesty’s Dominions, please do not hesitate to contact us – we would be happy to help and provide advice.

Letters of Administration

While different documents are required when filing an application for re-sealing of a grant of letters of administration as opposed to a grant of probate, the same principles generally apply. Once re‑sealed, the administrator has full authority to collect, manage, and distribute assets within Western Australia.

Personal Guarantees and Supreme Court Safeguards

In certain cases, particularly those involving grants issued outside Australia (but within Her Majesty’s Dominions), the Supreme Court may require you, as an administrator dealing with property in Western Australia, to provide a personal guarantee in order for your Grant to be resealed. A guarantee operates as a safeguard against mismanagement of estate assets, and may be enforced by a beneficiary if loss is suffered by those entitled to the estate. It is important to be properly informed of the risks which may apply should such a guarantee be required of you is crucial.

Appointment of an Attorney – A Sensible Alternative

While the Supreme Court can require an administrator to provide a personal guarantee, especially if the administrator lives outside WA, that requirement can often be addressed with careful planning. For example, appointing a trusted local attorney can satisfy the Court’s concerns and avoid the need for a personal guarantee, streamlining the reseal process and reducing cost and complexity. We are able to both advise on and implement these arrangements to ensure efficient compliance while protecting the interests of all beneficiaries.

Importance of Proper Classification and Preparation

Although re‑sealing of a Grant is often more efficient than applying for fresh Grant, it remains a technical process requiring careful preparation. Errors can arise where the originating jurisdiction is miscategorised, documents are not properly certified, or procedural requirements are overlooked. These issues may result in delay or refusal of the application. If for any reason the original grant was outside of Majesty’s Dominion, a fresh grant will be required.

How We Can Assist

Solomon Brothers have extensive experience in advising executors and administrators on all aspects of cross‑jurisdictional estate administration, including applications to re‑seal Grants, and for fresh Grants, in Western Australia. If you are dealing with an estate that includes assets in Western Australia, obtaining advice at an early stage as to whether you will need to apply for a fresh Grant, or whether your current Grant can be resealed, will assist in identifying the appropriate course of action, and help avoid unnecessary delay or cost. We can advise on these matters and some practical steps that may be taken – such as appointing a local attorney.

Disclaimer

This article is intended as general information only and does not constitute legal advice. If you require our advice in relation to your individual circumstances; we would be happy to assist.