Dealing with the deceased’s property: Wills, intestacy, and small estates
Getting court approval to deal with the estate
How do I find out if the deceased had a will? How do I find their will?
If you’re not sure if the deceased had a will, you should ask around your wider whānau first. If the deceased used a lawyer in the past (e.g., for buying a house), you could contact them. You can also check with the Public Trust.
Even if you have found a will, you should first make sure that you have the latest version, or if any changes to the original will were made (called “codicils”).
How do I apply for “probate”?
If the deceased left a will, and you’ve been named as executor, you’ll need to apply to the High Court to approve the will as valid, and to approve your power to deal with the deceased’s estate as the executor. This is called getting “probate” for the will.
When you apply for probate in the High Court, the application will need to be supported by a sworn statement (an “affidavit”) and other documents, all in the form required by the High Court Rules. Usually, the paperwork for the application will be prepared by a lawyer acting for the estate and the executor can then complete the process and file the application with the court.
If someone claims the will is invalid and challenges it in court, the process is more complicated and involves a High Court trial. In that case, a lawyer will usually be needed to represent the deceased’s estate.
Do I need to apply to the High Court when there isn’t a will?
If there isn’t a will, someone needs to apply to the High Court for an order entitling them to deal with the estate (“letters of administration”).
The person given authority to deal with the estate is then called “the administrator”. This is usually the closest relative, or sometimes a trustee company or the Public Trust.
This process will also be necessary if the deceased left a will but it’s invalid or didn’t name an executor, or if the named executor is unable or unwilling to act – for example, they may have since died, or moved overseas.
If the deceased didn’t leave a will, they’re said to have died “intestate”. In these cases, there are special rules (the “laws of intestacy”) that say who their property will go to, and in what proportions (see: “Who gets the property if there’s no will?”).
