Having a valid will is essential for alleviating the stress of your family members in an overwhelming and confusing time and allows for your estate to be administered smoothly.

We have outlined the main steps involved in the legal process below:

Importance of having a will

It is important that each of us, especially after acquiring belongings or assets, has a valid will. A will is a legal document that sets out how you would like your property (called your estate) distributed after your death. It may also include directions for funeral arrangements. 

Each will must have at least one executor, who should be a trustworthy individual who would be capable of assisting with an estate. A will sometimes appoints multiple executors, but this can complicate decision-making. 

It is recommended that you review and update your will regularly, especially after major life events. Wills must be drafted in proper form to be legally binding, so it is important that you consult a legal professional for advice and to assist with preparation and execution. Any mistakes can be costly when it comes time to administer your estate.

Upon the death of a loved one

The death must be registered with the Department of Internal Affairs within three working days of the burial or cremation, you will need the record of death signed off by a medical doctor or coroner if the death is unexplained. After this, you will receive a copy of the death certificate that can be used as proof of death. 

You should then check if the deceased person left a will. If you cannot find it, you can contact their lawyer who may have it on file or can help you locate it. 

Applying for probate 

If the value of the estate exceeds $15,000, the executor will apply to the High Court for legal authority to administer the will, called probate. This process must prove that the executor is acting upon the will-maker’s wishes. 

You will need to provide the original will and the estate lawyer and the executor will need to complete the High Court probate application. The court will then issue an order for probate confirming the executor’s authority and the executor will have access to the estate for distribution. The administration and distribution process is usually managed via the estate lawyer on the instruction of the executor.

If the value of the estate does not exceed $15,000, it may be dealt with by the next of kin without a court order, unless there is a dispute as to who will be the administrator. 

Dying without a will 

If someone dies without a valid will, this is called dying intestate. Instead of probate, for a larger estate you will need to apply for ‘letters of administration’. This is similar to the probate process, but you will need to prove that you could not find the deceased’s will and that the intended beneficiaries (those to inherit) had a relationship with the deceased. The appointment of the administrator and the distribution of the estate is managed in accordance with the Administration Act and the applicant will normally be the spouse or partner or parents or children of the deceased.

Settling the estate 

You must lastly settle the estate according to the will or the Administration Act. You must pay any debts, taxes or expenses from the estate, collect any money or property that is owed to the estate, and distribute any remaining assets to the beneficiaries. You may need to provide a final account to the High Court so the executor and the estate lawyer should keep accurate records of any transactions.  

Conclusion

This article has outlined the main steps involved in the legal process following the death of a family member or loved one in New Zealand. This process can be complex and time-consuming, so it is strongly recommended that you seek legal advice at any step along the way. You can also find more information and resources on the following websites:

• Department of Internal Affairs: https://www.dia.govt.nz/
• Citizen’s Advice Bureau: https://www.cab.org.nz/
• Inland Revenue: https://www.ird.govt.nz/