Dealing with the deceased’s property: Wills, intestacy, and small estates
Identifying and collecting all the property
After you’ve got formal approval from the courts to deal with the estate, you’ll need to do the following things:
- identify all of the deceased’s assets
- identify any people who might make a claim against the estate, and try to settle these claims if appropriate
- collect all the assets and get any necessary valuations
- pay any debts the deceased had, and
- pay any taxes due on the estate.
How do I identify everything that the deceased owned?
If you’re the executor/administrator, you have to make sure you know about all the assets in the estate, including any assets held overseas.
This might be a complicated process. You’ll need to write to the banks, insurance companies, share registries and other organisations where the deceased might have had accounts. You should go through the deceased’s papers and talk to relatives and other people who have information about possible assets.
These organisations will ask you to provide the court order granting administration before they give you any information, or release any of the property to you.
Note: If the deceased owned a house, piece of land, bank account, or other property jointly with another person, then that property might not form part of their estate, depending on how the ownership is structured. Instead that might become the surviving person’s property (this is a legal rule called “survivorship”) (see: “What if I owned a property jointly with my partner?”).
What happens once I’ve identified the assets?
As the executor/administrator, you’ll collect all of the assets together (sometimes called “gathering in” the estate).
You’ll be the temporary owner of all the property, money, shares, and debt. You’ll have to manage the estate and look after it on behalf of the beneficiaries (for example, the Land Titles Office will transfer any property that is in the estate into your name). Once probate is granted (or letters of administration if there’s no will), you can then transfer ownership to the relevant beneficiaries.
What if there are assets overseas?
As a general rule, New Zealand wills apply to New Zealand assets.
If the deceased owned any assets overseas, there are different procedures you’ll have to follow to collect those assets. You’ll usually need a lawyer to help you navigate this, as the process varies depending on things like which country the assets are held in, whether the deceased also had another will in that country, and whether their New Zealand will is capable of properly dealing with the overseas assets.
Paying debts and tax
Before any money or property can be distributed to the beneficiaries, the executor/administrator must first:
- figure out if the deceased owed any debt, and make sure that these debts are paid, and
- file tax returns and pay any tax owed, including:
- tax owed by the deceased at the time they died, and
- tax owed on income earned by the estate after they died (for example, the estate might have received rental income on properties that the deceased owned).
What if someone is making a claim against the estate?
It’s possible that a will may be challenged as invalid, or that someone may have a genuine legal claim against the deceased’s estate. For the different ways in which people can challenge a will or otherwise make a claim against an estate (see: “Challenges to your will”).
If so, the executor/administrator will have to resolve these disputes before they can distribute the assets of the estate. You might resolve this through a settlement agreement, or if you can’t agree, via court proceedings. This can significantly delay the process of distributing the estate.
