Should You Apply for a Reseal or for Letters of Administration in Australia?
Cross‑border estates involving Hong Kong and Australia are increasingly common. A frequent question arises:
If probate has already been obtained in Hong Kong, but the deceased did not make a will covering Australian assets, can you simply reseal the Hong Kong grant in Australia — or is a fresh application for letters of administration required?
The answer depends on a careful distinction between
(1) the type of Hong Kong grant obtained, and
(2) the legal basis of the Australian assets (testate vs intestate estate).
This article explains the legal framework and provides practical guidance.
Nature of the Grant
Australian courts do not reseal documents based on geography alone. Instead, they recognise the type of authority granted by the foreign court.
Importantly, a “reseal” is available for both:
- a Grant of Probate (with a will); and
- a Grant of Letters of Administration (with or without a will).
This means that the critical question is :
Was the Hong Kong grant issued pursuant to a valid will (probate), or because the deceased died without a will (administration)?
Where the Deceased Died Without a Will (Intestacy)
Under Australian law:
- If a person dies without a will, the estate is administered under intestacy rules; and
- the appropriate court grant is letters of administration, not probate
Hong Kong issued Grant of Probate (based on HK will only)
If the deceased obtained probate in Hong Kong, BUT there is no will governing Australian assets (or no valid will recognised for Australia)
In Australia, a grant of probate derives its authority from a will.
If the will:
- does not extend to Australian assets, or
- is not valid or applicable in Australia
then the probate does not provide full authority over those Australian assets.
In practice, Australian courts and asset holders will look at:
- who has legal entitlement to deal with the Australian assets, and
- whether that authority arises from a valid will or intestacy
If the Australian estate is intestate, then a fresh application for letters of administration may be required.
- the Hong Kong will is limited to Hong Kong assets
- the will does not appoint an executor capable of acting in Australia or
- there is dobut as to applicabilityof the will under the Australian succession law.
Summary
Where a Hong Kong grant has been obtained but the deceased did not leave a will applicable to Australian assets, it is not automatically appropriate to reseal the Hong Kong probate.
The correct legal approach depends on the true character of the estate in Australia:
- If the deceased is effectively intestate in Australia,
→ letters of administration should generally be applied for - If a valid foreign grant (probate or administration) properly governs the estate
→ resealing may be appropriate
Disclaimer
This article provides general information only and does not constitute legal advice. Cross‑border estate administration involves complex conflict‑of‑laws principles, and requirements vary between Australian States and the law of the jurisdiction where the grant was issued. Specific legal advice should be obtained before proceeding.