Probate 

What is 'probate'?
Is it always necessary to apply for probate before a Will can be executed?
How do I apply for probate?
Where do I file an application for probate?
Do I need a lawyer to apply for probate?

What is “probate”?

Probate is a court order recognising a Will as authentic and gives the executor  the legal authority to deal with the deceased’s estate and distribute according to the Will. The executor must apply to the High Court for probate.

An executor is a person appointed in the deceased person’s Will, whose role is to control and distribute assets according to the Will.
 
Once probate has been granted, the Will becomes a public record which anyone can search for and view.


Is it always necessary to apply for probate before a Will can be executed?

No, it may not be necessary to apply for probate if the deceased’s estate is a small one and doesn’t include ownership of land or an interest in land. A total of up to $15,000 in:

  • bank account funds 
  • shares, 
  • life insurance policies, 
  • Government stock, or
  • local authority stock

may be transferred or paid to the executor without requiring probate. The executor will probably need to provide a copy of the death certificate.


How do I apply for probate?

If you are the executor you must apply in writing to the High Court for probate to be granted in your favour. Usually you apply through a lawyer.

If someone else is contesting the Will, you would apply for an application for “probate in solemn form”  - this involves a trial at High Court and you would need to get help from a lawyer.

If no-one is contesting the Will, you would apply 'ex parte' (i.e. 'without notice'), which means you don’t have to notify anyone else that you are applying. This is called an application for 'probate in common form'.   

The application must be in a specific format, as required under the High Court Rules. You’ll also need to pay an application fee, and file the following documents with the Registrar of the High Court:

  • The original Will (i.e. not a copy) 
  • An affidavit (a statement sworn before a lawyer) by you which serves as evidence:
    • that the person who made the Will has died (a sworn statement by someone (it can be you or another person) who attended the funeral or saw the deceased’s body, or a death certificate) 
    • of where the deceased was living when he or she died 
    • that the Will is the deceased’s last Will.

 
Where do I file an application for probate?

You must apply to the High Court registry nearest to where the dead person was living when they died. If they weren’t living in New Zealand, it should be filed at the registry nearest to where most of the deceased's property is located.


Do I need a lawyer to apply for probate?

Although you aren't requred to use a lawyer, probate is usually arranged through a lawyer because all the documents must be set out in a specific way according to the laws of probate.