Who has the job of distributing the estate of someone who has died?
If the deceased left a will, then the person or people who have been named as the executor
in the will has this role.
If the deceased did not leave a will their estate is generally distributed by the deceased’s closest living relative according to a specific order of priority
. This person is called the administrator.
Depending on the size of the deceased’s estate, the administrator may need to apply to the High Court to appoint them to this role. If the closest living relative doesn’t want this role, then someone less closely related to the deceased can do it, but only with the agreement of those who are more closely related.
The High Court may also appoint an administrator of an estate if the deceased’s will has been ruled invalid, if the deceased did not name an executor, or if the executor of the will can’t or won’t fulfil this role.
If the deceased’s estate is small
, then the deceased’s closest living relative will be the administrator and they don’t have to apply to the High Court to be appointed to this role.
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What is the process for administering a will?
As the executor (or administrator, if the deceased left no will), 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 or administrator has to do include the following:
- Put an advertisement in the LawTalk publication, to confirm whether there is a will (allow around one month for this).
- Obtain the deceased’s latest will, if there is one.
- Make a list of the beneficiaries and contact them.
- 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) eg bank accounts, investments, real estate.
- 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. If the deceased had unpaid debts you will need arrange for those debts to be paid from the estate funds. People who might have a claim on the estate have 12 months from the date that probate or letters of administration was granted, to make their claim (this includes challenging the will).
- Contact Inland Revenue to check whether there are tax returns to complete or tax to pay and arrange for these to be done.
- Distribute the estate assets according to the will or to the rules of intestacy. Normally you don’t do this until six months after probate (or letters of administration) has been granted.
- Keep accounts of all dealings involving the estate eg property sold or transferred, debts paid. It is a good idea to open a separate account (an “estate account”), to which the estate assets can be transferred and from which the deceased’s debts can be paid.
- Wind up the estate - you do this when all claims have been settled and all of the assets have been distributed. If a beneficiary has a lifetime interest in one of the estate assets (for example the will gives them the right to live in the deceased’s house for the rest of the beneficiary’s life) then the estate is not wound up until the death of that beneficiary.
If the deceased had Māori land interests, these are dealt with through the Māori Land Court.
If you are the executor or administrator but are unsure what to do, you may want to talk to a lawyer.
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What is probate? What are letters of administration?
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.
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.
“Letters of administration” is similar to probate except that it applies when the deceased did not leave a will. It appoints someone to administer the deceased’s estate according to the rules of intestacy.
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Is it always necessary to apply for probate or letters of administration before the estate can be distributed?
If the estate includes land (or an interest in land), or one or more of the financial assets listed below is worth more than $15,000, then you’ll need to apply for probate or letters of administration:
- bank account funds
- life insurance policies
- Government stock
- local authority stock
If probate or letters of administration are not required, the executor or administrator will probably need to provide evidence of the death (eg the death certificate), to the organisations holding the funds (eg the bank).
Note that probate and letters of administration are 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 or letters of administration aren’t required, it might be a good idea to apply for it anyway, if the will or letters of administration are 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 just before they died
- states that the will is the deceased’s last will.
It costs around $200 to apply for probate or letters of administration.
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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How do I apply to be the administrator of an intestate estate – do I need a lawyer?
If a family member has died without a will, you can apply to the High Court to be appointed administrator, using the prescribed forms. The process is similar to that of applying for probate.
Although it is not a legal requirement to use a lawyer, the Ministry of Justice recommends that you talk to a lawyer as the application process can be complex.
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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 someone makes a claim, then the assets can’t be distributed until the claim has been settled.
If the claim is made within six months of probate or letters of administration being granted and the executor or administrator has already distributed the funds, then the executor or administrator 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 or the letters of administration have been granted, the executor or administrator 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 or administrator 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.
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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.