In our previous article, “What is Probate and Letters of Administration?”, we identified that in terms of their effect, probate and letters of administration are the same things with different terminology.
Probate and letters of administration are essential because without them (unless the estate is very small), no one can access the estate’s assets.
Despite the same function they hold for running the estate, the two are very different in more than just terminology. Where their differences are most apparent is in the required applications to the High Court.
Who is entitled to the grant (the executor/administrator)?
The person (or persons) who are entitled to the grant are the people who are given the power to run the estate by the High Court of New Zealand. They find all the estate assets, turn them into cash (where necessary) and pay all the estate debts. They then distribute what remains to the beneficiaries of the estate.
Probate - The Executor
In probate, the person entitled to the grant of probate is called the executor and usually finding who they are is very simple; the executor is named in the will. A will often has multiple people to act as executor. They work either together or one after another, and so if a person has died or doesn’t want to act, then others named in the will can be appointed instead. An executor proves to the High Court that they are named as executor in the will by producing the original will to the High Court in their application for probate.
Letter of Administration - Administrator
In letters of administration, things are more complicated. Letters of administration are required when there isn’t a will, and so, therefore, there is nowhere obvious to look to find out who should be the executor (in the case of letters of administration, the executor is called the administrator).
For these applications, there is a list of priorities in legislation, based on the relationship to the deceased. If someone wants to become the administrator, they check where they are on the list of priorities and make an application to the High Court asking to be appointed as administrator.
In their application, they must include the written consents of all the other people who have a priority greater to or equal to theirs on the list.
Who receives the assets of the estate (the beneficiaries)?
The beneficiaries of an estate are those who receive the balance of the estate’s assets once they have been gathered together, and all the debts have been paid.
With a Will
As with the previous example, when there is a will, the answer is quite simple. The beneficiaries are listed in the will along with what each of them will receive from the estate. The original will is put into the application to the High Court for probate. No further proof is required.
Without a Will
When there is no will, and letters of administration are required, how do you know who receives the estate assets and how much each of them receives?
The government has set this out in legislation as well. There is a list of who in the family of the deceased person receives assets from the estate and how much they receive when there is no will. The intricate part with making an application to the High Court for letters of administration is that you have to prove who the deceased person’s family were.
Did they have a spouse or de facto partner?
Did they have any children?
Did they have any surviving parents?
If there are no close family members, did they have more distant family members?
A search also needs to be conducted to ensure the deceased person didn’t have any unknown family members who would be entitled to receive their assets.
What about estates with assets in other countries?
In New Zealand, both probate and letters of administration can be granted for an estate where the deceased lived and died overseas but had assets in New Zealand.
Furthermore, if that estate is in a commonwealth country, the probate or letters of administration that they already have in their country of residence can be resealed.
If you would like to learn more about reseals, we will be covering the topic in our next article. Sign up for our newsletter here to receive a notification when the next article is published.
FOR MORE INFORMATION
Here at N.J. Lowe & Company - Probate Law Consultancy, we are specialists in these complex applications for probates, letters of administration, and reseals in the New Zealand High Court. If you think you need probate or letters of administration (or a reseal) in New Zealand, please email jenny.lowe@nzprobatesandreseals.com for a consultation.
jenny.lowe@nzprobatesandreseals.com
Jenny is one of the few legal specialists who can obtain re-seals, probates and letters of administration from the New Zealand High Court, for foreign estates that have assets in New Zealand.