Probate – what is it and how does it work?
Richard Cross • 26 August 2024

Probate is a legal process that confirms the validity of a deceased person's will and grants the executor the authority to manage and distribute the estate in accordance with the will. Probate ensures that the deceased's wishes are respected and provides a clear legal framework for the distribution of the estate.


When someone passes away, their will outlines who inherits their property and assets. To execute the will, the executor must apply to the High Court for probate. This is essentially the court's approval that the will is valid, and the executor is recognised to carry out the will's terms and to administer the estate. The process involves several steps:

 

  • obtaining the death certificate and the original will;
  • If assets exceed $15,000 in any one institution, then applying for probate;
  • notifying beneficiaries and creditors;
  • gathering and valuing the deceased's assets;
  • paying any debts and taxes; and
  • distributing the assets to the beneficiaries as per the will.


The entire estate administration  process can take several months.


What if there isn’t a will?

It's important to note that if the deceased did not leave a will, the process to legally manage and distribute their estate is different and involves applying for Letters of Administration.


Letters of Administration is a legal document issued by the High Court that authorises a person, known as the administrator, to deal with the deceased's assets and liabilities. The administrator has the responsibility to manage the estate, which includes tasks like:


  • closing accounts;
  • paying debts; and
  • distributing assets to the rightful beneficiaries according to the law.


If the deceased's assets do not exceed $15,000 from each institution (e.g. savings, shares, Kiwisaver), the estate is considered small, and the next of kin may be able to manage it without the need for Letters of Administration. However, if the estate includes property or larger amounts of assets, then the court's permission is required to appoint an administrator.

This process ensures that the estate is handled fairly and according to legal protocols, providing a clear path for the distribution of assets in the absence of a will. However, it can take longer than a probate application and can take three to four months just to obtain the grant.

 

Expert advice to on wills and asset protection

As legal professionals, our team are experts in wills, enduring powers of attorney and asset protection. If you would like to know anything more, just call us – we’re here to help.

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