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.
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.
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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.
- $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).
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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 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, 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.
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Where do I file an application for probate?
Applications for probate must be filed in the registry of the Wellington High Court (prior to 4 June 2013 applications could be filed at other High Court registries).
Do I need a lawyer to apply for probate?
Although you aren't required 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.