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Communtity Law Manual | A death in the family | Getting court approval to deal with the estate

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

Getting court approval to deal with the estate

Note: You don’t have to get court approval if the property in the estate is less than a certain amount: see below, “Small estates: No need for court approval”.

Applying for “probate” if the deceased left a will

If you’re the executor appointed in the deceased’s will, you should first make sure that you have the latest will. You should also find out about and locate any changes to the original will (called “codicils”). Contact the deceased’s lawyer, if they had one, or the Public Trust.

You’ll then need to apply to the High Court for it 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 an affidavit (a sworn statement) 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.

Once the High Court has made an order granting probate, or granting letters of administration if there’s no will, the order becomes part of the public court records, and anyone can look at it (along with the will if there was one).

Note: If the deceased owned a house or other land, a probate order from the courts (or letters of administration if there’s no will) will allow the house or land to be transferred to the beneficiary who’s entitled to it. Legal ownership will first be transferred into the name of the executor/administrator of the estate, and then transferred to the relevant beneficiary.

Getting court approval when there’s no will (“Intestacy”)

If there’s no will, the closest relative (or a trustee company or Public Trust) can apply to the High Court for an order entitling them to deal with (“administer”) the estate – the order is formally called “letters of administration”. The person given authority to deal with the estate is then called “the administrator”.

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 – called the “rules of intestacy” – that say who their property will go to, and in what proportions. See below in this section, “Distributing the property / Who gets the property if there’s no will?”

The administrator appointed by the High Court performs the same duties as an executor under a will. “Personal representative” is the general legal term used to refer both to executors and administrators.

Note: To make sure your spouse or partner has an income after your death while they’re waiting for court approval for your estate to be distributed, it’s a good idea for you to plan ahead together by establishing at least one joint bank account. Any property (including money) that is owned jointly passes, when one person dies, to the surviving joint owner. This means that all the money in the joint account will immediately belong to your partner when you die.

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