Probate - The Definitive New Zealand Guide
Our guide outlines what Probate is, why and when it's required, must-know facts and how it affects wills and estate distributions
Updated 30 May 2023
The process of Probate is often misunderstood by both the deceased and the beneficiaries of a will. To explain Probate and why it exists, our guide covers:
Looking to write a will? This guide is not for you - our dedicated wills guide as you covered.
Disclaimer: Our guide to Probate does not constitute legal advice in any form. We have published this guide to help New Zealanders understand the requirements and purpose of Probate. If you have a question relating to your will, we suggest discussing this with a lawyer. Any questions relating to the current distribution of a will are best directed to the executor.
The process of Probate is often misunderstood by both the deceased and the beneficiaries of a will. To explain Probate and why it exists, our guide covers:
- What is Probate and How Does it Work?
- Probate - Three Must-Know Facts
- Important - Probate Applies Even if There is a Will
- Frequently Asked Questions
Looking to write a will? This guide is not for you - our dedicated wills guide as you covered.
Disclaimer: Our guide to Probate does not constitute legal advice in any form. We have published this guide to help New Zealanders understand the requirements and purpose of Probate. If you have a question relating to your will, we suggest discussing this with a lawyer. Any questions relating to the current distribution of a will are best directed to the executor.
What is Probate and How Does it Work?
If you've created a will to be executed upon your death, you may think your estate is taken care of you, and your final wishes will be honoured. In most cases, your wishes will be taken care of, but maybe not as fast as you think. If the value of any asset in your estate is above $15,000, it will have to go through "probate" before the executor of your will can distribute any assets.
Probate simply means the high court grants permission for the appointed executor to do his or her chosen duties – executing the will. Probate is the court's way of protecting citizens from fraudulent activity while looking after a will's beneficiaries. With probate granted, New Zealand law grants the executor of the will permission to control the distribution of the estate. Without probate, there is a risk of assets of the estate being misappropriated or abused.
How Does Probate Work?
If an executor decides the estate must go through probate, he/she must:
Once the application is received, the Court Registrar will determine the validity of the will and the executor's statements. If everything is valid, the court will grant probate, and the executor can move forward with the will.
Probate simply means the high court grants permission for the appointed executor to do his or her chosen duties – executing the will. Probate is the court's way of protecting citizens from fraudulent activity while looking after a will's beneficiaries. With probate granted, New Zealand law grants the executor of the will permission to control the distribution of the estate. Without probate, there is a risk of assets of the estate being misappropriated or abused.
How Does Probate Work?
If an executor decides the estate must go through probate, he/she must:
- Complete an application for probate
- Provide a copy of the last will and testament and a letter stating the following:
- The executor knew he/she was the executor of the will and/or knew the deceased person
- The executor believes to the greatest extent of his knowledge that the will he/she holds is the latest will
- The executor must prove his/her identity
- A statement that he/she will follow the deceased's wishes as described in the will
Once the application is received, the Court Registrar will determine the validity of the will and the executor's statements. If everything is valid, the court will grant probate, and the executor can move forward with the will.
Probate Costs
An application for probate is required from the person or organisation (‘the executor’) named in the will. It costs $200 to file for Probate, which is the court costs. However, if a professional trustee company (such as Perpetual Guardian or Public Trust) is appointed the executor, they will charge the estate a fee for the time they spend making the application. Lawyers appointed to be the executor will do the same thing. The standard legal fees for this range between $300 and $500, and it's a one-off cost assuming there are not issues with the application.
Know This: There are further costs in distributing a will beyond the Probate fee
Know This: There are further costs in distributing a will beyond the Probate fee
- This detailed story about the sudden death of a husband outlines how the Probate period (and then waiting six months for an estate to be distributed) creates a lot of financial stress on the surviving partner. In this case, the surviving wife had to rely on family to complete the Probate forms, borrow money and take in boarders to keep afloat financially.
- Another story, involving Public Trust and it's inability to distribute an estate, highlights the issues when someone dies without a will, and how executors can struggle with distributing the assets.
Probate - Three Must-Know Facts:
1. Probate would apply to most estates unless the deceased had less than $15,000 in assets at one financial institution
For example, if the deceased's assets are a $5,000 term deposit, an $8,000 car and a $10,000 KiwiSaver balance, probate would not be needed to distribute the assets to the will's beneficiaries.
If a home is involved, most of the wills require probate. As such, it's best to apply for probate right away to avoid delays - the process is specific, and if you miss any details, it could cause a delay in the process. Until probate is granted, the executor cannot distribute any assets. The only way anyone can proceed is by getting the home ready for sale, but until probate is granted, no assets can exchange hands.
If a home is involved, most of the wills require probate. As such, it's best to apply for probate right away to avoid delays - the process is specific, and if you miss any details, it could cause a delay in the process. Until probate is granted, the executor cannot distribute any assets. The only way anyone can proceed is by getting the home ready for sale, but until probate is granted, no assets can exchange hands.
2. Life Insurance Pay-outs Require Probate
It's standard practice for life insurance pay outs to be held in probate. Unless it's a low-value policy, they fall under the $15,000 rule. If the life insurance is worth over $15,000, it must go through probate before the family can access the money.
3. Probate is Handled by the Executor (in most cases)
In most cases, the executor of the will applies for probate. This is the person you appointed to handle your estate and is the person the courts want to talk to when making sure everything is legitimate. The executor will apply to the Higher Court, providing the details they require to decide that they are 'allowed' to distribute your estate.
Important - Probate Applies Even if There is a Will
Many New Zealanders assume that if they have a will, their loved ones can avoid probate and promptly receive their share of the estate upon death. This is not the case. Every estate goes through probate unless it's a 'small estate' in the eyes of New Zealand law. This means the estate is worth less than $15,000 and doesn't include any real estate.
While the contents of the will (i.e. who gets what and how much etc.) are yours to decide, your executor (the person responsible for distributing the assets) must follow the law. The only exception, as outlined above, is if you die with no property and/or less than $15,000 in assets. In such instances, probate isn't necessary.
What if I don't know the value of the estate?
This is a question for the executor, and their role is to contact each bank and financial institution to find out the value of the assets to see if probate is necessary.
If your loved one didn't leave a will, you may need to file for Letters of Administration on Intestacy. This can get complicated and often requires the legal advice of a lawyer. For more details, this guide from the Citizens Advice Bureau explains everything you need to know.
While the contents of the will (i.e. who gets what and how much etc.) are yours to decide, your executor (the person responsible for distributing the assets) must follow the law. The only exception, as outlined above, is if you die with no property and/or less than $15,000 in assets. In such instances, probate isn't necessary.
What if I don't know the value of the estate?
This is a question for the executor, and their role is to contact each bank and financial institution to find out the value of the assets to see if probate is necessary.
If your loved one didn't leave a will, you may need to file for Letters of Administration on Intestacy. This can get complicated and often requires the legal advice of a lawyer. For more details, this guide from the Citizens Advice Bureau explains everything you need to know.
What is a Will?
Many New Zealanders tempt fate and avoid writing a will. It's important to know what a will is so you can see the importance of it. A will is a legal document you create that dictates how your assets are distributed upon your passing. The most comprehensive wills are usually drafted by a lawyer, so you know your estate is completely covered. You can keep a will in your belongings, and you should have one for safe-keeping somewhere that your executor can access upon your death.
More information: Our comprehensive wills guide explains everything you need to know in detail, including the options you have to write one, the costs, what to consider and must-know facts.
More information: Our comprehensive wills guide explains everything you need to know in detail, including the options you have to write one, the costs, what to consider and must-know facts.
Probate - Frequently Asked Questions
Do you always have to arrange probate when someone dies?
It depends on the value of the estate. If the person dies with an estate larger than $15,000 or with property/land, probate is necessary. It's just the court's way of protecting your estate from anyone taking advantage of your passing. It ensures the legitimacy of the executor and his/her ability to distribute the assets properly.
How long does it take for probate to be granted?
Fortunately, probate moves quickly in New Zealand courts. The average case is completed within four to eight weeks. To make sure your application goes through quickly, you'll need to read the fine print carefully, complete the application and provide all details the court requires to complete the request on the first try. If there is an issue, the application will be rejected, and the time to distribute the will moves further into the distance.
Can you file probate without a lawyer?
Yes - a lawyer isn't necessary to file probate. However, suppose the situation is completed or the deceased didn't leave a will. In that case, a lawyer may be necessary to help you with the details to ensure that everything is handled how the deceased would have wanted it.
How long after probate do you need to wait before funds can be distributed?
Once the court grants an executor probate, he/she must hold onto the assets for at least six months before distributing them. This gives the estate enough time for any claims that may come against it to surface. After the six months, executors can execute the will and distribute all assets within one year.
Is there a minimum amount for probate?
If the estate is worth less than $15,000, you should be able to avoid probate and distribute the deceased's assets right away.
Who is responsible for the estate if there's no will?
This guide from Public Trust outlines the process. In most cases, the person responsible for the estate is the person who will receive most of the estate. Still, if you prefer it to be someone else and the beneficiaries agree, the courts often appoint the person desired.