Probate in New Zealand What probate is, when you need it, and how to get it
Cheryl Simes
Kiwilaw's usual fee for probate applications - $490
'Yield to principle, not to pressure.' — Fisher and Udy, Getting to Yes
Kiwilaw Probate and Estates Ltd - January 2023 - version 1.5
Kiwilaw Probate and Estates Ltd P O Box 85, Oxford 7443, New Zealand probate@kiwilaw.co.nz https://kiwilaw.co.nz/probate For enquiries, please use the forms and resources on our website. See also links in this booklet.
I
Kiwilaw's usual fee for probate applications - $490
Table Of Contents When do you need probate?
1
How do you get probate?
5
Less than $120,000? An 'election to administer'?
6
Guide to Estate Administration
7
What is probate?
9
When do you need probate?
13
How do you get probate?
18
Less than $120,000? An 'election to administer'?
24
FAQ – Frequently Asked Questions
28
How do I uplift the original will, if it is held by a law rm?
28
Do I get the original will back, after it is sent to the High Court?
29
Can I use a certi ed copy of the original will, instead of sending the original will to the High Court?
29
Can I keep the will secret?
29
II
Kiwilaw's usual fee for probate applications - $490
What happens if the will is not in English?
29
Does it make a difference if my loved one had moved from New Zealand to Australia and made their permanent home there, signed their will in Australia, and died in Australia?
30
How long does it take for the High Court to issue probate, after the application is sent to the court?
30
If I use Kiwilaw, how do you send the documents to me, for me to sign?
30
Do I have to pay you if I change my mind before you send the documents to me?
31
Are Kiwilaw’s documents as good as another lawyer’s, even though you have never met any of us?
31
Do you give a discount to SuperGold card holders?
31
Can I still use Kiwilaw if the will directs me to use the law rm that prepared the will?
31
Can I still use Kiwilaw if the executor named in the will is the Public Trust?
32
Can I still use Kiwilaw if one of the executors named in the will is a solicitor?
32
What is a ‘deed of renunciation’?
32
III
Kiwilaw's usual fee for probate applications - $490
What happens if a grant of probate has already been made for an earlier will for the same deceased?
33
What happens if someone has lodged a caveat against the making of a grant of administration?
33
What happens if an executor does not want to apply for probate and wants someone else to do it instead?
34
What happens if there are two executors, one of whom will not do anything?
34
What happens if the only will we can nd was made before my loved one got married?
35
How do I check whether there is a later will than the one we have found?
35
What happens if the High Court registrar refuses to grant probate?
36
Why are your fees so low, compared with everyone else?
36
Kiwilaw sample fees - probate applications
37
Links - by QR code
38
IV
Kiwilaw's usual fee for probate applications - $490
When do you need probate?
Here we give you more details about each element mentioned on page 4.
Someone dies You cannot apply for probate before your loved one dies.
The will takes effect on death, not when it is written.
Page 13
Kiwilaw's usual fee for probate applications - $490
They leave a valid will A will is a document that was intended to take effect on your loved one’s death. It says what was to happen to at least some of what they owned, when they died. It does not have to use special wording or legal jargon.
It must have been made voluntarily, by someone who knew what they were doing. (If you apply 'without notice' for probate, you are telling the court that there is no reason for concern about this.)
The will must be signed by your loved one and be witnessed by two adult witnesses.
(If the document does not meet those requirements, the High Court can make a special order to declare the document a valid will. That requires a special application by an executor named in the will or someone who will bene t under the will. That special application is separate from an application for probate. Once the court makes an order to declare the document a valid will, the executor/s - if any - can then apply for probate. If there are no executors, someone else applies for 'letters of administration with will annexed'.)
If the will was made overseas, you can still apply in New Zealand. In some cases, evidence will be needed to con rm that the will is valid under the law of the country where the will was made.
In addition to the will, there may be one or more codicils. A codicil is a document made after the will, and in the same way as a will, which alters the will without cancelling it.
If the original signed will has been lost or destroyed, the court can grant probate of a copy. This requires evidence about how the will came to be lost or destroyed, the efforts made to nd the original, why the copy is reliable, and why the court can be satis ed that the willmaker did not deliberately destroy the original will in order to cancel it.
Page 14
Kiwilaw's usual fee for probate applications - $490
If there is (and was) no valid will, an application for ‘letters of administration on intestacy’ is required, rather than an application for probate. Different paperwork is required. (Use Kiwilaw's no-obligation screening form to obtain more guidance - see link on page 37.)
If there is a valid will but no available executor, there will need to be an application for 'letters of administration with will annexed', rather than an application for probate. (Again, use Kiwilaw's no-obligation screening form to obtain more guidance - see link on page 37.)
They leave more than $15,000 with any one nancial institution in New Zealand If your loved one left exactly $15,000 in a bank account and had no other investments with that bank, the bank can pay the $15,000 to the estate without requiring probate.
In contrast, if they left $15,000.01 in the bank account, the bank is not permitted to release those funds to the estate until probate is granted. (However, the bank is permitted to pay the funeral bill.)
Kiwisaver is often the reason probate is needed.
An insurance policy over $15,000 will need probate unless the policy speci es a named bene ciary.
They own an interest in general land in New Zealand Probate is required before any registered interest in general land can be dealt with – with two exceptions. 'General land' means land that is not 'Maori freehold land' and is in the general land registration system. Probate is not required to deal with Maori freehold land.
If your loved one owned general land (including a house, at, or apartment), or leased land, or held a mortgage over someone else’s land, that is called an ‘interest’ in land. Probate will be needed before that interest can be transferred or sold.
Page 15
Kiwilaw's usual fee for probate applications - $490
That includes the situation where your loved one owned a speci ed share of the title - maybe 1/2 or 1/3 or indeed 1/200 . Their share must be shown on the record of title.
First exception: joint tenancy One exception is if the land is owned in a ‘joint tenancy’ with someone else. That means the title shows several owners without showing them as having speci c shares. Land owned as joint tenants passes to the surviving owner without needing probate. Instead, a ‘transmission by survivorship’ is required.
Second exception: change status of land Another exception is if the land, although general land, would more appropriately be Maori freehold land. Without obtaining probate (or letters of administration), the bene ciaries under the will can apply to the Maori Land Court to change the land status from general land to Maori freehold land. If there are several other owners of the same block of land, those other owners must be noti ed and mostly agree. The judge will decide whether to change the land status. If it becomes Maori freehold land, probate is not needed.
If your loved one co-owned land, you may need to check the type of ownership by getting an up-to-date title search. (Kiwilaw can help with that.)
Page 16
Kiwilaw's usual fee for probate applications - $490
At least one executor, appointed in the will, is able and willing to act The will usually names at least one ‘executor’ (or, sometimes, ‘executrix’ – the old-fashioned term meaning a female executor).
This applies equally if the executor is named in a codicil to the will.
If no named executor is available or willing to act, or if they agree not to act, someone else can apply for ‘letters of administration with will annexed’, not an application for probate.
An application for probate as such must be made by someone who is appointed as an executor in the will (or codicil).
Page 17
Kiwilaw's usual fee for probate applications - $490
How do you get probate?
As executors, you decide whether to prepare the probate application documents yourselves or whether to use professional help.
You do not have to use a solicitor or lawyer. (In this context, ‘solicitor’ and ‘lawyer’ mean exactly the same.)
You should check the likely costs and bene ts before making a decision.
Any decision should be made jointly by all the executors, if more than one is appointed.
Once you have obtained probate, you then have a new decision: to what extent do you use professional help for the rest of the estate administration. This booklet is dealing only with getting probate.
Option 1 – do it yourself with no professional assistance You may feel able to apply for probate yourself with no professional assistance.
Page 18
Kiwilaw's usual fee for probate applications - $490(We
Start now!Use Kiwilaw's no-obligation online screening form to provide enough information for us to con rm our fee - use the URL (web address) below, or use your smartphone camera to scan the QR code (diagram) below which will go straight to the page. It will ask you to upload a copy of the will and any codicils - a photo or scanned copy. If you cannot do that immediately, you are asked to email it ASAP. https://kiwilaw.co.nz/probate/enquiry-and-screening-grant-ofadministration-in-new-zealand/
Page 27
Kiwilaw's usual fee for probate applications - $490
FAQ – Frequently Asked Questions How do I uplift the original will, if it is held by a law rm? Contact the rm. They will require written con rmation by all the executors before they release the original will. You can do this entirely yourself. If you prefer, you can use a Kiwilaw online service to prepare and download a Word document: your credit card is charged $46: click here.
If any executor has died, the law rm will require proof, such as that executor's death certi cate.
They will send the original will to you, or you can arrange to pick it up.
They will want you to sign something to acknowledge receipt.
When you rst get the original will, carefully check its physical condition - before you sign anything to acknowledge receipt. It should not have any staple holes (showing that it has been unstapled) or paper-clip indentations or anything else that could mean something else was attached to it. The High Court will require an explanation of any such holes or marks. If there are indeed any such issues, ask the law rm to con rm they will provide an af davit to explain what happened.
Do not unstaple the will. If it is not stapled, do not staple it.
Occasionally a law rm will insist on sending the original will to a law rm rather than direct to the executor/s. If necessary, Kiwilaw can help with that. We do charge an extra fee for our involvement.
Page 28
Kiwilaw's usual fee for probate applications - $490
Kiwilaw sample fees - probate applications Standard f ee - 1 or 2 applicants
490
Additional applicant
100
Overseas applicant, provides alternative NZ address
100
Overseas applicant - uses Kiwilaw as address for service
200
Original will has holes or marks requiring explanation by applicant
100-200
Original will has holes or marks requiring explanation by somebody else
300-500
Codicil/s
200-300
Joint will (multiple will-makers)
200
Multiple identical original wills (same will-maker)
200
Affidavit by witness - for instance, if will does not have the required attestation clause or the date is unclear
300-500
Evidence about deceased's NZ domicile if died overseas
200-300
Evidence about deceased's overseas domicile
200-300
Af f idavit of overseas lawyer to prove validity of f oreign will under f oreign law - liaison (PLUS f ee charged by f oreign lawyer)
200
Lost will
500-800
Foreign-language will OR non-English-speaking applicant liaison with translation service (PLUS f ee charged by translation service)
200
Subsequent invalid will-type document - disclosure and any notices required
Page 37
100-300
Kiwilaw's usual fee for probate applications - $490
Links - by QR code The booklet contains several links to webpages, either Kiwilaw's or someone else's.
However, if you have printed a hard copy, those links may be daunting.
Instead, on this page, you can connect using a smartphone or other device, by using your device's camera to scan the relevant QR code below.
(If your phone camera does not automatically scan QR codes, you may need to download and install a QR reader from your App Store. It is not as terrifying as it sounds. Ask a youngster, librarian, or computer geek for help.
Kiwilaw website - re probate applications
https://kiwilaw.co.nz/probate
Kiwilaw client-care information
https://kiwilaw.co.nz/client-care-information-probate-service-otheronline-documents/
Kiwilaw's Guide to Estate Administration... purchase for AUD45.00 (platform does not offer NZD) https://issuu.com/cherylsimes/docs/22.01.25_guide_v_1-3
Page 38