When someone dies, after the funeral and when the family turns to the practical side of managing their loved one’s affairs, one of the first questions is whether a formal High Court order is needed before the estate can be dealt with.
In New Zealand, that order will usually be either probate or letters of administration.
Whether probate is required depends on three key factors:
- whether the deceased left a valid will
- whether there is an executor able to act, and
- the nature of the assets in the estate
Probate and letters of administration: the key distinction
The distinction is straightforward. If the deceased left a valid will and an executor is able to act, the estate will usually require probate. Probate is the High Court’s confirmation that the will is valid and that the executor has authority to administer the estate.
If there is no will, or no executor able or willing to act, the estate may instead require letters of administration. In that case, the Court appoints an administrator to deal with the estate. Where there is no will, the estate is administered in accordance with the Administration Act 1969. Where there is a will but no executor can act, the Court may grant letters of administration with the will annexed.
When is probate required?
Whether probate is needed depends less on the total value of the estate and more on the type of assets involved and the requirements of the institutions holding them.
As a general guide, if the estate is worth less than $40,000, probate may not be required. This reflects the current prescribed amount under the Administration Act 1969 for certain payments without formal administration.
However, this is not a strict rule. Some estates below that threshold will still require probate, and some assets above it may be able to be dealt with without it. Each bank, insurer, KiwiSaver provider, or other institution will have its own requirements.
It is also important to recognise that not all assets form part of the estate in the same way. For example, property held as joint tenants will usually pass automatically to the surviving owner by survivorship, rather than under the will. A useful first step is often to locate a copy of the property title to confirm how any property is owned.
Even where probate is not required, institutions will usually require documentation such as a death certificate, proof of entitlement, and completed forms before releasing funds.
What does the process involve?
To obtain probate, the executor applies to the High Court. The application is governed by the Administration Act 1969, the Wills Act 2007, and the High Court Rules 2016.
The process generally involves preparing and filing Court documents, lodging the original will, and providing affidavit evidence confirming the death, the validity of the will, and the executor’s entitlement to act.
Once probate is granted, the executor has legal authority to collect assets, pay debts and liabilities, and distribute the estate.
In terms of timing, it typically takes around 6 to 8 weeks to obtain probate, although this can vary depending on Court workload. There is also a Court filing fee (currently $269).
What if there is no will?
If the deceased did not leave a will, or there is no executor able to act, the estate may require letters of administration instead.
This is a similar Court process, but the Court appoints an administrator rather than confirming an executor. The estate is then administered in accordance with the Administration Act 1969.
In practice, these applications are often more complex, as there is no will to guide how the estate should be distributed and there are statutory rules governing who is entitled to apply and who inherits.
If probate is not needed, there may still be work to do
A common misconception is that if probate is not required, the estate can be dealt with quickly and informally. In reality, there is often still a significant amount of administration involved.
This can include updating property ownership records, notifying banks and other organisations, closing or transferring accounts, obtaining balances, and ensuring assets are transferred to the correct people.
Even relatively straightforward estates can involve multiple institutions, each with their own processes and requirements.
How we can help
At Godfreys Law, we can advise you on whether probate or letters of administration are required, prepare and file any necessary High Court application, and guide you through the estate administration process.
We can also assist where probate is not required, including helping with survivorship title updates, liaising with banks and other asset holders, and managing the practical steps involved in administering an estate.
If you are unsure whether probate or letters of administration is required, it is worth getting advice early. The answer depends on the will, the assets involved, and how those assets are held.
Getting the right advice at the outset can save time, reduce cost, and help ensure the estate is administered properly.
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