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Family law

Dealing with the deceased’s property: Wills, intestacy, and small estates

Distributing the property

Once you’ve identified and collected together all the property that the deceased owned (“gathered in” the estate), and dealt with any debts, taxes and legal claims the deceased might have been responsible for, you can then distribute the property to the people who are entitled to it.

If there’s a will, you’ll distribute the estate to the beneficiaries according to the directions in the will. If there isn’t a will, you’ll follow the legal rules set out in the Administration Act 1969 (the “laws of intestacy”).

Who gets the property if there’s no will?

Administration Act 1969, ss 77, 82A Administration (Prescribed Amounts) Regulations 2009, reg 5

The law sets out an order of priority for who gets the deceased’s property if he or she didn’t leave a will, and in what proportions. All those people are family members.

The basic order of priority is:

  • the spouse, civil union partner or de facto partner, then
  • children (regardless of whether the parents were married)
  • the deceased’s parents
  • brothers and sisters
  • grandparents
  • uncles and aunts.

Note: A de facto partner will usually only be entitled under the laws of intestacy if the relationship was for three years or longer – but there may be an exception if the de facto partner has made a substantial contribution to the relationship or there is a child of the relationship.

Here are some common examples of how the property is distributed under the rules of intestacy:

  • If there’s a spouse or partner, and there are also children, the spouse/partner takes:
    • all the deceased’s personal possessions, including cars, furniture, appliances, jewellery and so on (basically everything other than land, buildings and money), plus
    • a set dollar amount, which is currently $155,000, plus
    • one third of the rest of the deceased’s property. The children take the other two thirds of the rest of the property.
  • If there’s no spouse or partner, the children take everything in equal shares.
  • If there’s no spouse or partner, and no children, the deceased’s parents will take everything.
  • If there’s no spouse/partner, children or parents, the deceased’s brothers and sisters take everything in equal shares.

Note: If there’s a Family Court Separation Order in effect, the surviving spouse or civil union partner has no right to the property under the laws of intestacy. However, if the couple were living apart but there was no separation order, their rights under the laws of intestacy are the same as if they’d still been together (see: “Challenging a will”).

Administration Act 1969, s 77A Family Proceedings Act 1980, s 26

If a person dies without any of the specified list of family members surviving, their property may pass to the government.

Can someone challenge how the property is distributed when there’s no will?

Yes – you can challenge the way the property is distributed if you have a genuine claim under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949 and the Property (Relationships) Act 1976 (see:Challenges to your will”).

How long will it take for the estate to be distributed to the beneficiaries?

Technically, you could have finalised and distributed the estate within six months after the grant of administration. However, this is very much dependent on the type of assets in the estate, any legal complexities, the terms of the will, and whether anyone challenges the will.

It’s sometimes possible to make interim payments to the beneficiaries before the estate is completely finalised, particularly if the assets are all in cash (or can be turned into cash quickly), if there are a small number of beneficiaries, and if all liabilities have been identified and are able to be paid from available funds. If the terms of the will are more complicated, it might not be possible to pay any of the beneficiaries until all the assets have been gathered in.

If there are overseas assets in the estate, these may take longer to deal with because the procedure regarding administration in other countries can be complex.

Next Section | Māori land

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A death in the family

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Confirmation of the cause of death – Coroners

The website of Coronial Services of New Zealand has information about the role of coroners in investigating the causes of deaths.

Website: coronialservices.justice.govt.nz

Registering a death

The Births, Deaths and Marriages section of the Department of Internal Affairs has information on what to do when someone passes, including registering a death.

Website: www.govt.nz/browse/family-and-whanau/death-and-bereavement

Burial and cremation

See your local council website for information about burial and cremation in your area.

Gathering kaimoana for tangihanga

The Ministry for Primary Industries has information on its website about Māori customary rights for gathering kaimoana for tangihanga, hui and other traditional purposes.

Website: www.mpi.govt.nz/fishing-aquaculture/maori-customary-fishing

Financial support for bereaved families

Work and Income’s website has information about possible financial support for funerals and tangihanga.

Website: www.workandincome.govt.nz/eligibility/urgent-costs/bereavement.html
Phone: 0800 559 009

ACC’s website has information about different types of accident compensation and payments that can be made to family members when a person has died in an accident.

Website: www.acc.co.nz/im-injured/financial-support/financial-support-after-death
Phone: 0800 101 996

Organ Donation New Zealand

Organ Donation New Zealand has information about organ and tissue donation.

Website: www.donor.co.nz

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