New South Wales
The Supreme Court can refuse to grant probate or letters of administration to the person otherwise entitled, if they are outside the jurisdiction (the jurisdiction being the state in which the grant is being sought, namely, New South Wales). The court can also make an alternative grant where the executor or administrator is out of the jurisdiction, even if probate or letters of administration have already been granted to that person.
The Probate and Administration Act 1898 (NSW) provides two separate mechanisms for grants when the executor or administrator is out of the jurisdiction:
where a grant has not yet been made, s 72 of the Probate and Administration Act 1898 (NSW) allows letters of administration to be granted to a person appointed by the nominated executor (or , if there is no executor or no will, the person who otherwise would have been entitled to seek a grant of letters of administration such as the deceased’s spouse) pursuant to a power of attorney. The grant is made to the attorney on behalf of the absent person, and is limited until the absent person returns to the jurisdiction and applies for an unlimited grant; and
where a grant has already been made, the executor/administrator is subsequently shown to be residing outside the jurisdiction, and a person (for example, a beneficiary or creditor) is delayed in obtaining the benefits to which they are entitled as a result, ss 76–80 of the Probate and Administration Act 1898 (NSW) allow the person (or NSW Trustee and Guardian) to apply for a special grant of letters of administration until the executor/administrator returns to the jurisdiction.
Queensland
Where the executor or entitled administrator is out of the state, it may be impractical for him or her to obtain a grant, particularly when one considers the obligations and demands on one's time involved in the actual administration of an estate. Practically speaking, and depending on the assets owned by the deceased, it will be much easier for a person who is present in the jurisdiction to administer the will of the deceased
The court may make a grant to a person residing in Queensland who the court is satisfied may act under a power of attorney for the person who is entitled to a grant.
Western Australia
The Supreme Court can refuse to grant probate or letters of administration to the person otherwise entitled, if they are outside the jurisdiction (the jurisdiction being the state in which the grant is being sought, namely, Western Australia). The court can also make an alternative grant where the executor or administrator is out of the jurisdiction, even if probate or letters of administration have already been granted to that person.
The Administration Act 1903 (WA) provides two separate mechanisms for grants when the executor or administrator is out of the jurisdiction:
where a grant has not yet been made, s 34, of the Act allows letters of administration to be granted to a person appointed by the nominated executor (or person properly entitled to grant of administration such as spouse) pursuant to a power of attorney. The grant is made to the attorney on behalf of the absent person, and is limited until the absent person returns to the jurisdiction and applies for an unlimited grant; and
where a grant has already been made, the executor/administrator is subsequently shown to be residing outside the jurisdiction, and a person (for example, a beneficiary or creditor) is delayed in obtaining the benefits to which they are entitled as a result, s 38 of the Act allows the person to apply for a special grant of letters of administration until the executor/administrator returns to the jurisdiction
Tasmania
The court is able to grant probate to an executor who is outside the jurisdiction: s 21 of the Administration and Probate Act 1935 (Tas).
Practically speaking, and depending on the assets owned by the deceased, it will be much easier for an executor who is present in the jurisdiction to administer the will of the deceased.
South Australia
Where a person entitled to a grant resides outside South Australia, administration may be granted to that person’s duly appointed attorney under r 43. Note — the instrument appointing the attorney must specify the details of the estate — a general power of attorney will not suffice.
Australian Capital Territory
The court is able to grant probate to an executor who is outside the jurisdiction: s 10B of the Administration and Probate Act 1929 (ACT. Where the court grants probate to an executor who is a resident outside of the jurisdiction, the Act provides that the executor will be taken to be a resident in the ACT: s 69 of the Administration and Probate Act 1929 (ACT.
Practically speaking, and depending on the assets owned by the deceased, it will be much easier for an executor who is present in the jurisdiction to administer the will of the deceased.
An executor who is outside the jurisdiction can appoint an attorney who is resident in the ACT to act on his/her behalf to obtain a grant of probate.
See Applications durante absentia (outside jurisdiction) .