Estates, Probate & Letters of Administration

April 13, 2022

Estate administration is the process of obtaining legal authority to deal with an estate, gathering a person's assets and making distributions to their beneficiaries.  The appropriate process varies depending on whether the deceased left a Will and if so, the condition of the document, whether an executor has been validly appointed, and the size of the estate. 

 

 

Probate

 

Probate is a formal application to the High Court to prove the validity of a Will.   The application is made by the executors of the estate named in the Will.

 

There are two types of probate application:

 

  • Probate in common form:  This application is made to the High Court in Wellington and is appropriate where the validity of the Will is uncontested.   Probate in common form will usually be granted by a Registrar of the Court in chambers.

 

  • Probate in solemn form:  This is an originating application made to the High Court nearest to where the deceased resided before they died.   The matter will be heard before a judge.  This application is made where there is some issue with the Will, such as allegations of undue influence or lack of capacity when the Will was signed. 

 

 

At a minimum, the documents required for probate include the original Will and an affidavit sworn by the executors named under the Will which contains evidence that the deceased has passed away, usually through the death certificate.    Sometimes additional affidavits will be required, such as where the Will has been altered through removal or addition of a staple, if alterations were made and inappropriately documented, or where the Will was incorrectly witnessed.  

 

Following a grant of probate, the executors have the legal authority to deal with the estate and will gather the assets to enable distribution to the beneficiaries.

 

 

 

Letters of Administration

 

Letters of administration are a grant by the High Court to distribute an estate where there is no Will, or where there is a Will, but it fails to appoint an executor.

 

There are two types of application:

 

  • Letters of administration with Will annexed: This application is made where the deceased left a Will, but that Will failed to appoint an executor, or the named executor(s) have passed away or are unable to act.

 

  • Letters of administration on intestacy:  This application is made where the deceased did not leave a Will.

 

Letters of administration granted by the High Court appoint an administrator to deal with the assets in the estate.

 

Letters of administration with Will annexed authorise the administrator to distribute the estate in accordance with the Will, whereas letters of administration on intestacy authorise the administrator to distribute assets in accordance with the Administration Act 1969.  This is often not how the deceased would intend, which is why it is vital to ensure you have a valid Will in place setting out the preferred distribution of your assets.

 

 

Informal Distribution of Small Estates

 

If the estate is small, an application for probate or letters of administration may not be required.

 

Informal administration of an estate is permitted where the deceased did not hold any interest in land and they did not have any asset (such a shares, bank account, life insurance policy) worth more than $15,000 with a single asset holder.  In that case, the next of kin will need to provide a copy of the death certificate to the relevant institution for the funds to be released.

 

 

Conclusion

 

Estate administration can be a confusing and time-consuming process.  Our lawyers have experience in making these applications, as well as disputes and litigation, and would be happy to assist you in any application.  We would also be happy to review your estate planning to ensure appropriate plans are in place.

 

For more information, contact us today at reception@becker.co.nz or 04 473 8484

 

 

Nina Becker

Staff Solicitor

 

 


Disclaimer: The information contained in this article is general in nature and not tailored to your personal circumstances. It is only current as at the date posted and should not be relied upon as legal advice. If you require legal advice, please contact us for further assistance.