Resealing the grant of probate

bgy3jlh

Hello, 

Does anyone have any experience of resealing the UK grant of probate in a commonwealth country?

I have received the UK grant of probate and need to have it resealed in New South Wales Australia, to be able to access shares held there. One of the steps involves having a signature witnessed by an Australian solicitor or an Australian JP. Does this mean that I have to instruct an Australian solicitor, or would anyone advise that I can do it all myself?

What have your experiences been, of resealing a grant in a commonwealth country? 

(PS, 'resealing' is a term that means that the grant becomes viable in the commonwealth country without having to go through probate from start to finish in that country, thanks to a reciprocal agreement between the countries.) 

poseidon1

https://www.legalaid.nsw.gov.au/my-problem-is-about/someone-who-died/wills-and-estates/applying-for-probate/step-by-step-guide-applying-for-reseal-of-a-grant#accordion-70fb3601cd-item-b5e78f4c2b

The link above  appears to outline the procedure for resealing a grant in NSW. There appears to be a DIY option, but depending on the value and nature of the Australian assets, this could become complex enough to have justified using an Australian lawyer from outset. The fact that at some point the NSW authorities will require and retain the original will, would give me pause for thought in going DIY.

bgy3jlh

Thank you for your speedy reply.

We've been quoted £1,868.54 from an Australian solicitor for reseal. It's one asset: shares with an Australian bank, worth £131,646. We would probably appreciate the solicitors also actioning the transfer of the shares to the main beneficiary, at an additional cost.

There was no will (so, it's technically a letters of administration, but I didn't want to muddy the waters in my original question).

bgy3jlh

(oh, but that quote includes the filing fee and probate notices. The lawyers fees are based on the value of the asset.)

The solicitors fees alone are £1,097.70

poseidon1

bgy3jlh said:

(oh, but that quote includes the filing fee and probate notices. The lawyers fees are based on the value of the asset.)

The solicitors fees alone are £1,097.70

Interesting, my intial instinct given the value and nature of the asset is that the fee sounds quite reasonable and disbursements on top are what you would incur if trying to DIY.

Putting the shoe on the other foot ie a UK solicitor fee for resealing  Australian letters of administration, I feel the UK fee would be somewhat higher.

bgy3jlh

Thanks again poseidon1, much appreciated

I understand that a UK solicitor wouldn't be able to take on the work.

One thing I hadn't thought about is how to pay the Australian solicitor from the UK. And I'll have to bear in mind the exchange rate when reviewing the quotes. I've emailed about 80 solicitors from the New South Wales Law Society register, to ask them to quote. 

I also just realised that this might not be the last time I have to go through this rigmorole, if my mum isn't able to sell all of the shares before the dreaed and inevitable happens to her. The plan is to sell as many as she can, each year, without needing to pay capital gains tax.

My dad had tried to transfer the shares into my name before he passed away. He wasn't ill, and wasn't expected to die any time in the next 20-30 years, but he wanted to avoid anyone having to deal with them after he'd gone.

Actually, now I'm wondering whether there *would* be capital gains to pay, because surely the calculation would be cost at selling minus cost at date of my dad's death. It surely wouldn't be cost at selling minus what my dad paid for them, decades ago?

poseidon1

bgy3jlh said:

Thanks again poseidon1, much appreciated

I understand that a UK solicitor wouldn't be able to take on the work.

One thing I hadn't thought about is how to pay the Australian solicitor from the UK. And I'll have to bear in mind the exchange rate when reviewing the quotes. I've emailed about 80 solicitors from the New South Wales Law Society register, to ask them to quote. 

I also just realised that this might not be the last time I have to go through this rigmorole, if my mum isn't able to sell all of the shares before the dreaed and inevitable happens to her. The plan is to sell as many as she can, each year, without needing to pay capital gains tax.

My dad had tried to transfer the shares into my name before he passed away. He wasn't ill, and wasn't expected to die any time in the next 20-30 years, but he wanted to avoid anyone having to deal with them after he'd gone.

Actually, now I'm wondering whether there *would* be capital gains to pay, because surely the calculation would be cost at selling minus cost at date of my dad's death. It surely wouldn't be cost at selling minus what my dad paid for them, decades ago?

To answer the last question, the new cost figure for the shares is the market value at your father's death, all gains he accrued during his lifetime have been erased. However, there may well be further appreciation by the time your mother has legal control, but if she is a basic rate tax payer, she is only looking at a 10% CGT liability on the post death gain, after using her £3,000 annual exemption.  Of course that rate could change in the coming budget, we shall see.

You will of course need to consider how to eventually sell the shares if the family does not already have an appropriate stockbroker on call.

As for the best way to pay the Australian lawyer, I recommend opening a Wise currency account. Wise is a UK based online multi currency account that offers some of the most competitive exchanges rates in the business ( Wise gets a fair amount of love from  MSE Savings forum contributors).

 Once the Wise account is up and running ( there is a convenient app ) you choose the optimum point at which to convert sterling to Australian dollars, in readiness to send to the lawyers using their international Iban account number.

If you take foreign holidays going forward, you will fine Wise an invaluable and cost effective resource, which comes with a very handy debit card for foreign spending. 

Best of luck with the resealing excercise.

bgy3jlh

Thank you. My gosh, it's overwhelming. No wonder my dad was keen to relieve us of the burden of having to deal with them.

Thank you for the straight forward responses. Unlike I've had from New South Wales:

'I note as of 1 October 2023 most uncontested applications are made online.

However, if you do not have an address in Australia you will not be able to make an account – if this is the case you will have to seek leave to file on paper. Such a request should be made to the attention of the Prothonotary to this address.

If you need any clarification or further information please let me know.'

poseidon1

bgy3jlh said:

Thank you. My gosh, it's overwhelming. No wonder my dad was keen to relieve us of the burden of having to deal with them.

Thank you for the straight forward responses. Unlike I've had from New South Wales:

'I note as of 1 October 2023 most uncontested applications are made online.

However, if you do not have an address in Australia you will not be able to make an account – if this is the case you will have to seek leave to file on paper. Such a request should be made to the attention of the Prothonotary to this address.

If you need any clarification or further information please let me know.'

I agree, most unhelpful for non resident applicants.

Would have  been best if they had recommended consulting a NSW lawyer from outset. Seeking the appropriate permission to file on paper sounds like a real faff, and that is before you even get to  the stage of actually filing the application itself!

At least the current value of the shares makes the whole excercise ( via a lawyer ) worthwhile.

bgy3jlh

Oh no! I am worried that our UK solicitor may have used the wrong value for the shares. I gave her this figure:

2,469 Commonwealth Bank of Australia shares at $102.29 per share = $252,554.01 

However, that $102.29 was based on the 'close' position. The 'adj close' position was $98.61

I asked the solicitor to verify my figures. Were they correct to be based on the 'close' and not 'adj close' figure? 

poseidon1

bgy3jlh said:

Oh no! I am worried that our UK solicitor may have used the wrong value for the shares. I gave her this figure:

2,469 Commonwealth Bank of Australia shares at $102.29 per share = $252,554.01 

However, that $102.29 was based on the 'close' position. The 'adj close' position was $98.61

I asked the solicitor to verify my figures. Were they correct to be based on the 'close' and not 'adj close' figure? 

I would stick with the original price you gave for probate purposes. Certainly I cannot see it makes sense to reopen the valuation issue now that probate has been granted.

HMRC's guidance where you are doing the valuation yourself,  rather than engaging an investment professional, merely refers to the closing price on day of death. There is no mention by them of potential adjustments factors applied to the closing figure, which is not surprising since HMRC's familiarity is with the London Stock Exchange and not the  vagaries of foreign exchanges.

Of course if IHT were in point , then reverting to  the lower figure would have resulted in a  modest IHT reduction and potential tax refund. As things stand the figure you did use will produce a lower gain for future capital gains tax purposes when the shares are eventually sold ( although i appreciate you will be trying to use your mother's annual CGT exemptions to shelter future gains). Accordingly I see no need for you to upset the apple cart, and delay the resealing process.

Incidentally, at the current share price of 142.85 AUD per share for the shareholding, I arrive at a sterling value of around £181,000, so it's value seems to have moved markedly since the commencement of your post. 

Given its dividend yield and rate of capital appreciation it has ( and still is) doing very well, especially in the period following your father's demise.