Anyone can be named as the executor of a Will – typically a close family member. A result of this is that many executors are thrust into the role while grieving, with no idea where to start. The executor’s first step when someone dies, is almost always to apply to the High Court for probate. The only case where probate is not necessary, is if the estate is valued at less than $15,000, and contains no real estate.
The purpose of probate
Probate is the formal legal recognition of the last Will of the deceased and the named executor(s) of that Will.
Probate is required to prevent potential conflict between people claiming to be the legal executors of someone’s estate and verifies that the Will is the last Will of the deceased. It also provides a confirmation from the executor(s) that they will administer the Will in accordance with the law.
The executor(s) applies for probate and once the court determines that the Will is in order, the registrar issues the grant of probate, allowing the executor(s) to move forward.
This effectively starts the process of administering the deceased’s Will. The Will can, of course, still be challenged after this point.
What isn’t probate
Probate is not a legal certification that the Will can be administered exactly as written as there are circumstances which could give rise to claims against the deceased’s estate and could therefore, change the way the will-maker wished the estate to be administered.
For example, omissions in the Will can’t necessarily be allowed to stand. The Family Protection Act 1955 requires us to provide for close family members, and the Law Reform (Testamentary) Promises Act 1949 requires us to keep promises that we’ve made to others in return for services. If the Will doesn’t contain sufficient provisions for those concerned, they have the right to challenge the Will.
How to apply for Probate
To apply for probate, the executor(s) needs (amongst others) the following:
- The Original Will signed correctly by the will-maker and complies with the requirements specified in section 11 of the Wills Act 2007
- A sworn or affirmed affidavit (sworn or affirmed in front of an appropriate witness as per the Oaths and Declarations Act 1957) which proves the identity of the executor, and states that the executor will follow the deceased’s wishes as laid out in the Will and contains evidence that the will-maker has died, and that the Will presented is the latest Will written by the deceased
- Any other relevant evidence (such as for assets outside New Zealand)
- A $200 application fee to send to the High Court.
The application process can take four to six weeks on average, although longer wait times are not unusual for more complex probate applications which can cause issues for some families who are, for example, relying on the deceased’s estate to cover funeral expenses.
When creating your Will, it’s important to understand how probate works, and what the needs of your loved ones will be when you pass on.
To ensure that your Will is administered as well and as quickly as possible, it can be helpful to appoint a trustee company like Trustees Executors as executor. Not only does this ensure that your Will is administered by experienced legal professionals, we can also assist you in creating your Will to ensure that all your legal obligations are met to minimise the chance that the Will could be contested. Moreover, we can also help you set up a funeral trust to immediately cover related expenses upon your passing, relieving your loved ones of a difficult financial burden otherwise faced by many families.
If you’d like to learn more about probate or creating a Will, don’t hesitate to contact one of our estate planning experts today.
Call 0800 878 783