I’m an executor of a will – now that the will-maker has died, what do I need to do?
As the executor your role is to administer the deceased’s estate, which includes settling any debts that the deceased has left and distributing the estates to the beneficiaries named in the will.
The tasks that the executor of a will (or the administrator, if the deceased left no will has to do include the following:
- Obtain the deceased’s latest will
- Make a list of the beneficiaries
- Make a list of the deceased’s assets (if the deceased’s financial affairs were managed by their accountant, then you should consult with the accountant on this).
- Find out if the deceased left any unpaid debts – you can do this by placing a Notice to Creditors in the Public Notices section of the newspapers.
- Contact the deceased’s banks, insurers, share registries, KiwiSaver provider, utilities providers etc. so that you can arrange for accounts to be closed, services cancelled and so on.
- Arrange for any tax owed by the deceased to be paid – you can contact Inland Revenue to check whether there is tax to pay.
The executor may also need to apply for grant of probate – more information about this is below.
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What is “probate”?
Probate is a court order recognising a will as authentic and confirms that the executor has the legal authority to deal with the deceased’s estate.
An executor is a person appointed in the deceased person’s will, whose role is to control and distribute assets according to the will.
If probate is required, the executor must not distribute the deceased’s assets until probate has been granted.
It should take around four to six weeks for the High Court to process the application, but it could be longer if the High Court is busy or a complicated affidavit is required;
Once probate has been granted, the will becomes a public record which anyone can search for and view.
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Is it always necessary to apply for probate before a will can be executed?
Probate may not be required if the deceased’s estate is a small one and doesn’t include ownership of land or an interest in land.
- $15,000 in bank account funds, and
- $15,000 in shares, and
- $15,000 in life insurance policies, and
- $15,000 in Government stock, and
- $15,000 in local authority stock
may be transferred or paid to the executor without requiring probate. The executor will probably need to provide evidence of the death (e.g. the death certificate), to the organisations holding the funds (e.g. the bank).
Note that probate is not required for land and real estate that the deceased owns jointly with another person (for example, a family home with is jointly owned by the deceased and their surviving spouse) – the jointly owned property passes to the surviving joint owner.
Even if probate isn’t required, it might be a good idea to apply for it anyway, if the will is likely to be contested.
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How do I apply for probate?
If you are the executor you must apply in writing to the Wellington High Court for probate to be granted in your favour. Usually you apply through 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, registrar or JP) by you, which:
- contains evidence that the person who made the will has died (e.g. a sworn statement by someone who attended the funeral or saw the deceased’s body, a death certificate - a certified copy may be acceptable)
- contains evidence of where the deceased was living when they died
- states that the will is the deceased’s last will.
It generally takes around four to six weeks for the High Court to process the application but it could take longer if the High Court is busy or a complicated affidavit is required.
If someone is contesting the will, you would need file for probate “in solemn form”. In this case there is a trial at High Court, for which you will probably need legal advice.
You can check the progress of your probate application by calling the Courts of New Zealand on 0800 268 787.
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Do I need a lawyer to apply for probate?
You aren't required to use a lawyer - however probate is usually arranged through a lawyer, Public Trust or a statutory trustee company. This is because all the documents must be set out in a specific way according to the laws of probate.
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What happens if someone makes a claim on the estate?
Anyone who wants to make a claim on the estate has to do so within 12 months of probate being granted (or, if the deceased left no will, the “letters of administration” being granted).
This might include someone challenging the will; or someone claiming that the deceased owed them money. If this happens, then the assets can’t be distributed until the claim has been settled.
If the claim is made within six months of probate being granted and the executor has already distributed the funds, then the executor can be personally liable for settling that claim.
If the claim is made after the six month period has ended the executor won’t be personally liable to meet that claim – funds from the estate will be used to settle the claim instead.
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How long will it be before the beneficiaries receive their share of the deceased’s estate?
Once probate has been granted, the executor has to allow at least six months (up to 12 months), for any claims to be made on the estate, before they can distribute the assets:
- If someone is owed money by the deceased then the executor must settle the claim before the estate can be distributed to the beneficiaries;
- If someone is challenging the will then settling the claim will involve a trial in the High Court and could potentially add months (sometimes years) to the time it takes before the beneficiaries receive their inheritance.
Where the deceased didn't leave a will, the person who has been granted letters of administration (i.e. the administrator) also has to allow up to 12 months for any claims to be made on the estate.
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If the deceased owned assets overseas as well as in New Zealand would a grant of probate apply to assets in both countries?
Assuming that probate is required due to the value of the assets (or because the assets include land or real estate), in this situation the executor of the will (or the person applying for letters of administration, if there was no will) has two options:
- Apply for probate (or letters of administration) in that country and in New Zealand. This option is necessary if the overseas property is held in a country that is not part of the Commonwealth;
- Apply for probate (or letters of administration) in the deceased’s country of residence and arrange for it to be “resealed” in that country so that it also applies in the other country. This is generally quicker than the previous option but is only available if the overseas country is part of the Commonwealth.