What is a probate application?
A probate application in New Zealand is an application made to the High Court in Wellington where the court accepts an original will from a person who has died and produces a document (the probate) which allows the executors appointed in the will to take possession of the assets of the estate. For a more in-depth explanation of probate, see our article here.
Probate applications are some of the most challenging applications to make to the court. The reason for this is that they are the only surviving part of a mediaeval system of law; a system which required the application to be made using precise words. If you are interested in the fascinating history of probate applications, have a look at our article here.
Because of this, probate applications can seem a frustrating and mystifying process, but they don’t need to be.
This article gives you a blow-by-blow summary of the process for a simple probate application so you can see all the steps; right through the process to when the court produces the grant of probate.
First steps
Our first step involves us asking the executors for information and documentation about the estate.
Examples of the information we require include:
Date of death: which is often provided by scanning us a copy of the death certificate;
The updated addresses and occupations of the deceased and the executors: often the will gives addresses and occupations for the deceased and the executor, and if these are out of date, the probate application must note the current details;
Whether all the executors are willing and able to run the estate: if one or more have died, lost mental capacity or don’t work well enough with the other executors to complete the tasks required of them, a different application might be required;
A copy of the will: a scan is fine at this stage, but the original will be needed (see below);
Whether the pages of the original will are attached together and whether they have ever been taken apart: usually this is obvious because there are extra staple holes in the will other than the ones with the current staple. Even an indent of a paperclip where something has been clipped onto the original document will require an explanation to the court; and
How the executors would like to sign the affidavit: whether the executors would like to swear the affidavit (which involves holding the Bible) or whether they would prefer to affirm the affidavit (where you don’t hold anything and confirm that you bind yourself by the Oaths and Declarations Act 1957 instead).
The application itself
We then prepare the application for the court based on the information provided.
The next steps are:
We send the executors the draft affidavit to check. The affidavit is the part the of the application the executors have to sign, so they need to check that everything it says is true and correct from their point of view;
Once the application is prepared, the executors sign the affidavit. They can sign by seeing any solicitor in New Zealand (who will usually sign an affidavit free of charge). They can also use a Justice of the Peace. If they are overseas, ideally a notary public should be used to sign the affidavit;
The affidavit must be signed by each executor with the original will present (and their witness signs an exhibit note which is attached to the original will);
Once the affidavit is signed, we complete the rest of the application and submit it to the court along with the original will. Because we are walking distance from the High Court in Wellington (where all the probate applications for the country are granted), we deliver our probate applications by hand so that there is no risk of them getting lost in the post and there is no delay in the process by waiting for delivery to the court;
The court usually takes 7 to 9 weeks to produce the grant of probate once the application has been received at the moment due to delays surrounding COVID-19 and the resultant backlog, but under normal circumstances it is more along the lines of 6 to 8 weeks; and
If the circumstances require it, we can make an urgent application which only takes 2 to 4 weeks;
As soon as we have the grant of probate from the court, we email the executors a certified true copy (which is usually sufficient for asset holding organisations to release their assets) and post them the original.
Do you have a probate application to be made?
We will be happy to help. Here at N.J. Lowe & Company - Probate Law Consultancy, we have one of the few legal specialists in New Zealand for these types of applications, covering everything from the simple to the complex. Contact Jenny Lowe now at jenny.lowe@nzprobatesandreseals.com.