Prickly Probates Series – Probate of a Foreign Will

Prickly Probates Series – Probate of a Foreign Will

Although many people are still avoiding international travel due to the pandemic, in pre-covid times, it was becoming more and more common for people to move around the world and accumulate assets in multiple countries.

It isn’t uncommon for people with investments or assets in various countries to make a will overseas to deal with these assets. This can create interesting complications when the person dies, and probate applications are required.

Hence, we are dedicating this next instalment of the Prickly Probate Series to applications for probate of foreign wills.

Foreign Probates and Reseals

Suppose someone with assets in New Zealand dies and has no will in New Zealand but does have a will from a Commonwealth Country. In that case, the process is reasonably straightforward in that we can apply for our High Court to put their seal on the probate of the will from the other Commonwealth Country. To understand more about a reseal and how assets in multiple countries are dealt with, see our articles here; What is a reseal? — NZ Probates & Reseals (nzprobatesandreseals.com) and Estates with assets around the world — NZ Probates & Reseals (nzprobatesandreseals.com).

Foreign Wills - Probate Application Process

However, when someone with assets in New Zealand dies and has no will in New Zealand, but does have a will from another country that isn’t a Commonwealth Country, the only option to deal with the New Zealand assets is to probate the foreign will here.

An application for probate of a foreign will is similar to a regular application for probate, but it has a few key additions.

• There must be an affidavit from a lawyer in the country where the will was made confirming that the will is valid in the country where it was made;

• There must be a translation of the will if it is not in English;

• There must also be an affidavit from the person who translated the will showing their qualifications and confirming that the translation is an exact copy into English of what is in the will; and

• Although it is not obligatory, proof that probate of the will has been granted to the same person applying here in the country where the will was made is helpful.

It will almost always be critical that the will is valid in the country where it was signed. Occasionally this isn’t the case depending on the citizenship and domicile of the will maker, where the actual signing of the will took place and whether the countries involved are signatories to the international conventions governing the validity of wills. Still, it is best to have a lawyer involved to navigate the complexities correctly.

Case Studies

I recently had a client who made a will to govern his assets located in New Zealand. The way the will was written and signed meant that it would have been valid in New Zealand, but because he was not a New Zealand citizen, was domiciled overseas and actually signed the will overseas in a country where it was not a valid will in the way he signed it, it was invalid in New Zealand as well.

Another complication is that some wills state that they only cover the assets in a particular country, in which case they can only be probated and used in the country whose assets they state that they cover.

I’ve had a case where a client made a will in the United Kingdom, which said it only covered her assets situated in the United Kingdom. She intended to make another will to cover her New Zealand assets, but she died before completing the New Zealand will. In that case, even though we had a perfectly valid will and probate in the United Kingdom (which we would otherwise have been able to reseal), we could not use it here, and she was treated as being intestate (i.e. having no will) in relation to her New Zealand estate.

Prickly Probates

There are so many twists and turns in these types of applications which we will cover in future articles on further aspects, but suffice to say that probating a foreign will in New Zealand is a classic case of a Prickly Probate.

For More Information

If you are acting for an estate that has assets in New Zealand, but the only will is from another country, we would be happy to help. We make these applications often and streamline this complex process to make it easy for you. Even if you are a lawyer yourself, it can be worthwhile to entrust the probate application to a specialist and save you the time upskilling for an application you will very rarely be obliged to make.

For more information or assistance from our probates specialist, please send Jenny Lowe an email at jenny.lowe@nzprobatesandreseals.com.

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.

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Your Wedding Day and its Effect on your Estate

Your Wedding Day and its Effect on your Estate

Are you aware of what happens to your will when you get married? Are you sure about what happens to your will if a marriage ends in divorce? As with so many things in the law surrounding grants of probate, the answers will surprise you.

In fact, we are finding that more often than not, it is not the person themselves who finds out the answers. The truth usually is discovered by the grieving family of a person who has died when they come to apply for probate of the will, and it is often an unpleasant surprise at an already difficult time. 

The short answers are:

• Marriage cancels a will; and

• Divorce does not.

Which really does seem to be entirely backwards to what common sense would dictate.

Marriage cancels a will

W.e recently had an unfortunate case where a client and her de facto partner had been together for many decades. She made a will leaving almost her entire estate to her de facto partner many years before she died. However, as she became ill leading up to her death, they decided, as a romantic gesture, to get married and did so to the delight of their friends and family, never dreaming it would have any effect on their already carefully prepared legal paperwork.

The lawyers found out she had been married only after she died when the family prepared to apply for probate. Even though she had married the person who was in the will, the will was automatically cancelled, and the court treated her as having no will at all.

Thankfully, because of the setup of their assets and the size of her estate, the rules governing people without wills meant that almost the exact same division of assets occurred as would have occurred in the will, but that won’t always be the case. In many cases, the effect of the rules governing people without wills may be very different from what the person decided in their will.

You can avoid this issue by inserting a clause in the will that says specifically that you are expecting to get married to a particular person and that this shouldn’t cancel the will if it does happen. Still, even wills made by lawyers who carefully consider your situation won’t generally include this unless you specifically discuss your plans to marry in the near future.

The best solution is to update your will on a regular basis, especially as your circumstances change, and to discuss regularly with your lawyer what your upcoming plans are and what your wishes are so that the lawyer can make sure your will caters for all likely eventualities.

Divorce does not cancel a will

Given that many wills leave the entire estate or a large part of it to a marriage partner, separating or divorcing that partner would seem a sensible time for a will to be cancelled. However, neither separation nor actual divorce cancels a will.

They do, however, have an effect on the will under some circumstances. If, for example, the couple have an order from the court formally dissolving their marriage, then the will is read as if the divorced partner died before the deceased partner (even though they are in fact still alive, just divorced) in the places where the divorced partner is appointed a trustee or given a gift under the will. 

This at least means the divorced partner doesn’t receive their gifts and aren’t put in charge of running the estate, but often leaves awkward holes in the will if there isn’t a backup provision in the document.

It also only works with the correct paperwork in place; we have seen many difficult cases where a couple has been separated, sometimes for decades, but never formally divorced. The will was also never updated. So the divorced partner is still entitled to everything the will leaves to them.

Civil Unions

Civil unions follow exactly the same rules as marriages.

De facto relationships

Entry in and out of de facto relationships does not affect the will’s validity whatsoever. That can often create very unsatisfactory results, especially when wills are not updated over a long time.

Conclusion

 Other laws (particularly those surrounding property and relationships) assist with this situation. In cases where wills are accidentally cancelled, the outcome is at least somewhat more in line with what we would expect. Still, they often aren’t exactly what the deceased wished and come at the cost of extra time, stress and legal fees that are unwelcome, to say the least.

Families can also sign documentation to agree to do things differently in an estate. Some family members sometimes sign away their interests, but this relies on people’s sense of moral obligations and only works if everyone agrees and is willing to sign the documentation.

As with so many rules in the world of probates, these rules were put in place often a hundred or several hundred years ago when the situation in society was very different. In the case of marriage, it almost always occurred at the very beginning of a relationship, at least in terms of financial interdependence, whereas nowadays, that is rarely the case. Divorce was so rare that the lawmakers didn’t even feel it needed to be mentioned. Although a lot has changed in our society since those days, not an enormous amount has changed in probate law.

Whenever your relationship status changes or is due to change, spare a thought for your probate application and see your lawyer, who can guide you through the surprising byways that you must traverse; your family will thank you for it. 

For more information

 If you find yourself faced with one of these awful surprises after a loved one has died, we can unravel the confusion and re-build the last wishes in the will as best as is possible to do; contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseals, probate and letters of administration applications.

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.

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How long will it take to unlock estate assets?

How long will it take to unlock estate assets? – A timeline for probates, letters of administration, and reseals

A common complaint we hear is how long it takes for people to receive their inheritance once a friend or family member has died.  

Being remembered in someone’s will is often a bittersweet surprise. But, once you have waited for over a year or more to receive that gift, the experience can begin to feel sour. 

Dealing with an estate from start to finish can vary greatly, and how long it takes depends on how complex the estate is and how many people need to be involved (and how many questions they each might have). Yet, any estate that has assets worth over $15,000 will have probate as part of its process, and it is worth knowing about that probate process as it can take some time.

When someone dies, all of the organisations which hold the assets (such as banks, insurance companies and Land Information New Zealand) lock those assets. A grant of probate is the document that unlocks those assets and allows the executor of the will to access them to complete the administration of the estate by following the instructions in the will.

When the person who died had a will, the application is called a grant of probate – when they did not have a will, it is called a grant of Letters of Administration. When one of these has been granted in a Commonwealth country and needs to be approved by our court for use on assets in New Zealand, it is called a Reseal. 

You are required to make all of these applications to the High Court of New Zealand. It usually takes between 4 to 6 weeks from when the application is put into the court to receive a grant. Sometimes the court can be quite a bit quicker than this (at the moment, for example, they are processing most of these applications in roughly four weeks). Still, we always like to encourage our clients to expect the worst and then, if it is faster, they are in a better position.

If an application is urgent (for example, one of the people entitled to money from the estate is struggling financially or if the estate owns a house that has a hole in the roof which needs estate money to protect and repair the home), the court can be convinced to make an urgent grant if you explain to them why it is required. An urgent grant takes only between 1 to 2 weeks.

The real differences in timing come not from the court process itself but from preparing the application and collecting all of the evidence needed for the court to make the grant.

Grant of Probate

The Courts make a grant of probate when there is a will, so it is reasonably easy to discern who the executors are because they are listed in the will.

Lawyers must prepare an application for the estate, which includes an affidavit from the executors to confirm specific details to the court, such as:

• The deceased person really has died.

• The will they are producing is the most recent will that the deceased made

• they really are the executors listed in the will and,

• They promise the court that they will carry out the wishes stipulated in the will.

All executors have to sign this affidavit, and their signatures must be witnessed by a lawyer, Notary Public or a Justice of the Peace.

The original will must also be in the presence of the executors when they sign their affidavits. The necessity for original documents to go back and forth can often add a lot of time. Specifically, when waiting on the post, if the executors don’t live close to the lawyer for the estate. If they do live close by, they can pop into the lawyer’s office to sign, and nothing has to go by post. 

Occasionally, the original documents can get lost in the post, and then a completely different application has to be carried out. 

We always recommend sending original documents with tracked services to avoid this problem where possible.

Letters of Administration

This application has all the same issues as a grant of probate in terms of timing, but with the added complication of needing to choose who the executors are because there is no Will that determines this. Executors under letters of administration are called “administrators”, but the role is almost identical.

Essentially, how the administrators are chosen depends on what family members of the deceased person are alive at the time of their death. The government have a prescribed list for who receives what from the estate. Whoever is entitled to the largest part of the estate in the list is designated the estate administrator. 

The tricky part is that you have to prove, one by one, that the various classes of relatives are not alive or in existence to narrow it down to the relatives who are entitled to the largest portion of the estate. If one relative is entitled to the largest portion, they are allowed to be the administrator. If there is more than one relative who receives the same portion, the relative who applies to be the administrator also has to have consents signed by all the other relatives who are entitled to the same portion of the estate as they are.

This adds another whole dimension of complication in making searches of government registries, finding the people who need consent, convincing them to sign consents, and for the original documents to all be created, signed, and posted back to the estate lawyer.

Reseal

A reseal is the easiest of the three applications. The hard work for the grant of probate or letters of administration has already been completed in another country. 

The executors or the administrators don’t have to sign anything for the application for a reseal – this is taken care of by the lawyer making the application. The only original document that needs to be posted is the probate or letters of the administration itself (although this posting time is often quite long because it is always crossing borders).

However, reseals are not typical applications for most lawyers to make, so we recommend using specialists who often do them. Otherwise, this process can be lengthy for an inexperienced lawyer who needs to up-skill themselves to make the application. 

CONCLUSION

Overall, the application for probate, letters of administration, or reseal is only a part of a long process that can often take 12 months or more from the date that someone died to finish all the jobs in their estate and pay the money the people are entitled to inherit.

However, it often represents a reasonable chunk of that time, and the executors or administrators can do little or nothing with the estate assets until this is granted. Usually, executors and administrators are also required to hold the estate assets and not distribute them to anyone for six months from the date of grant of probate or letters of administration. This timing is a key part of the overall timing of any sizeable estate.

FOR MORE INFORMATION

If you are dealing with an estate where a reseal, probate or letters of administration are required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseals, probate and letters of administration applications, especially for an international estate with assets in New Zealand. We can make these complex applications simple and painless for you.

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.

Read more articles

United Kingdom reseals

The United Kingdom reseals

Travel and living arrangements between New Zealand and the United Kingdom have become more popular over the years (we lawyers are a part of that statistic, particularly prone to spending time in the United Kingdom working early in our careers). As a result, there are many people with assets in both New Zealand and the United Kingdom.

That means, whichever country you choose to make your home, your assets in the other country require extra administration when you die. Because both New Zealand and the United Kingdom are commonwealth countries, probate for a deceased estate (or letters of administration if the estate didn’t have a valid will) from one country can be resealed in the other. As a commonwealth country, the process is faster and more streamlined than applying for probate in both countries.

If you are dealing with an estate in the United Kingdom with assets in New Zealand, we are experts at resealing United Kingdom probates here in New Zealand. Because we routinely undertake work between the two countries, we also have contacts in the United Kingdom who can assist you with the same questions in the other direction if need be.

WHAT IS A RESEAL?

A reseal is as simple as it sounds. 

When probate or letters of administration are granted, the court which makes that grant “seals” the document by placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal turns the document into a valid grant that can be used to unlock the estate assets.  Without it, all you have is a piece of paper that organisations won’t accept to unlock estate assets.

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it.  That transforms the document into a grant of probate that is only valid in the United Kingdom, for example, to a grant of probate that is valid in both the United Kingdom and New Zealand. 

If you were to present the original grant of probate from the United Kingdom to the bank in New Zealand, they would not accept it and refuse to release the assets.  If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have the New Zealand High Court’s seal on it.

COMMON ISSUES WITH A UNITED KINGDOM RESEAL

We are experiencing a common issue at the moment with UK probates, where the will is not attached, especially given parts of the United Kingdom have recently updated their probate process so that the will is not required to be attached to the probate.

Although this type of probate is perfectly valid within the United Kingdom, it is not enough for our Court in New Zealand to grant a reseal.

For letters of administration, which are granted when there is no will, nothing needs to be attached to the letters of administration for us to arrange a reseal. 

However, with the probate, the will needs to be attached to the probate by the court (for our court to grant a reseal). 

What the court will require if:

• There is no will attached to the probate, but the court supplied a copy of the will: Confirmation from the court that issued the probate that the will supplied is indeed the deceased’s last will. The confirmation must come from the issuing Court, not from the solicitors that acted to receive it.

• There is no will attached to the probate, and the Court did not supply a copy of the will: A copy of the will produced in a way that our court can be confident that it is the will associated with the probate. For example, it has a cover letter from the court or has been certified by a court officer.

Between the multiple lockdowns and the London Registry closing last year, receiving a copy of the will has been taking a longer time than usual – we have one particular file where we have been waiting for a copy of the will for seven months!

Accordingly, if you are dealing with an estate with assets in New Zealand and applying for probate in the United Kingdom, it might be wise to request a copy of the will in one of the manners above at the same time you apply for probate. Having this copy ready to go will ensure you are all prepared for the reseal process.

FOR MORE INFORMATION

If you are dealing with an estate where a reseal is required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for reseal, probate and letters of administration applications, especially for an international estate with assets in New Zealand. We can make these complex applications simple and painless for you.

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.

Read more articles

The importance of storing your will with your lawyer

Applying for probate of a will is often more complex than expected. An issue that comes up in our applications, time and time again, is where something has happened to the will while it was the care of the person who has died.

Because a will is the last wishes of someone who can no longer express any wishes at the time of probate, the court is very particular about making sure that the will probated is in every way correct.

THE PRESUMPTION OF DESTRUCTION ANIMO REVOCANDI

For example, suppose an original will is lost, and only a copy can be found. In that case, the court can grant probate of the copy, but only if they can be absolutely sure that the original has not been destroyed by the deceased before they died. This is where the court applies the presumption of destruction amino revocandi. 

A presumption is something that the court will assume unless you can prove to them otherwise. 

In this case, the presumption is that if the last place that the original will was known to be was in the possession of the person who wrote it, and after their death the original will cannot be found, then the court presumes that the person who wrote the will destroyed the will with the intention to revoke it unless it can be proved that this is not the case.

It is quite difficult to prove that the person who wrote the will did not destroy the will in order to revoke it once they have died.  Some examples of situations where it was successfully proved that the deceased did not destroy the will were cases where the deceased had talked to friends and family to say they were happy with what their current will contained soon before their death or cases where the deceased’s house burned down (or a similar accidental destructive event occurred), but there was proof that the original will was safely in their papers before the fire.

If you leave your original will with your lawyers for safekeeping in their deeds system, however, the court makes no such presumption. Also, lawyers’ deeds systems are usually very well organised and very carefully administered to ensure that wills can always be found and sometimes they are even housed in fireproof rooms just in case. Even if the lawyers were to lose or accidentally destroy the original will, they generally have good enough systems in place to ensure that they can still convince the court that the copy they have is the correct original so that they can receive a grant of probate of a copy of that will.

If you’re interested in reading more about probate of a copy of the lost will, you can read my article dedicated to that subject here.

THE PAGES OF THE WILL

The court also wants to ensure that all pages of the will are the correct pages. Assuming the court did not check the pages carefully, one can imagine how it would be easy for some unscrupulous beneficiary to remove a page of the will or add a page to the will to benefit themselves.

Accordingly, the court checks all original wills submitted to them for probate to ensure that all of the pages are as they should be. If they are not, the court requires an extra affidavit in the probate application called an affidavit of plight.

There are two main issues that come up with pages at the time of probate. These relate to a will where:

• the pages have not been attached together; or

• it appears that some other document has been attached to it in the past.

Where the pages have not been attached together

If a will is presented for probate with the pages not attached together in any permanent way (such as a staple, ribbon or a brass pin), the court needs to be reassured that all the pages of the will are present.

We recently had a client who made their own will and put it in a safe in their house, but they never stapled the pages together. When they died, one of their children opened the safe and removed the will and gave it to another of their children who took it to the lawyer to apply for probate.

The court insisted that every person who handled the will since it came out of the safe had to make an affidavit to confirm all pages were present while the will was in their care. Both children and the law firm had to make an affidavit of plight, and each one of them had to have the original will in their possession to make that affidavit, which added a lot of extra time, cost and effort to the application.

Where it appears that some other document has been attached to the Will in the past

If the will shows marks on the pages that suggest that another document was attached to it at some stage in the past (even if the will itself is securely and correctly held together), the court needs to be reassured that no other document in the nature of a will was attached to the will when these marks appeared.  This same situation will happen if the will had been stapled together, the staple was removed and a new staple was put in.

The marks on the paper can be made by the original staple which was removed, by a bulldog clip or a sliding clip indenting the front and back pages, or even by a paperclip making its distinctive imprint on the front page. When the court receives the application for probate, they run their eyes and their fingers over the original document to check for these imprints or imperfections. The court will insist upon an affidavit of plight if they are at all concerned.

We are currently making a probate application for a client where the original will has the imprint of a bulldog clip on the top. The client stored the will at home, and when the family found the will and sent it to the lawyers there are was no bulldog clip attached. The court will insist on an affidavit from the person who removed the clip so that person can reassure the court that there was no other document in the nature of a will attached at that time. In this case the person who removed the clip (and probably the person put it there in the first place) is deceased.As with the issue of losing the will discussed above, if you store the will at a law firm, it is less likely to encounter these two problems; legal staff are trained on how to treat the original documents. If either of these problems do occur, law firms also have systems in place to ensure that the person who needs to prove something to the court is available (or evidence as to usual office procedure can be used if that person is not available) and the extra proof can therefore be provided with relative ease.

For clients

If you have any questions about storing your will (or indeed you would like us to store your will for you – a service we provide for free) or if you are dealing with an estate where the will has one of these issues, give us a call. We specialise in probate applications, and we will do everything we can to make the process as smooth as possible for your grieving family instead of landing them with further complications at a difficult time.

For other lawyers

If you are a lawyer struggling with one of these applications for a client, you might consider using us to complete the application for you. We run a service for other lawyers preparing these applications on your behalf.  Because we do so many of them, we can complete them faster (and usually cheaper) than you can, and it saves you the unchargeable time coming up to speed with a tricky application which you will not need to make often. Your client need not know we exist – they receive an efficient and painless grant and attribute that success to you!

FOR MORE INFORMATION

For more information, please contact Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. Please contact Jenny Lowe by email at jenny.lowe@morrisonkent.com

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.

Read more articles

Australian reseals

Australian reseals

Since trans-Tasman travel and living arrangements have become so common in recent years, more and more people are finding that, when a loved one dies, some of their assets are "over the ditch". That means that the grant of probate or grant of letters of administration they received in the country where the deceased lived needs to be resealed in order to access the assets in the other country.

If you are dealing with an estate in Australia which has assets in New Zealand, we are experts at resealing that Australian probate here in New Zealand.

What is a reseal?

A reseal is as simple as it sounds. 

When probate or letters of administration are granted, the court which makes that grant “seals” the document but placing a stamp, an imprint or sometimes (as the process was named after) a wax seal on it. The seal is what turns the document into a valid grant that can be used to unlock the assets of the estate.  Without it, all you have is a piece of paper which won’t be accepted by organisations to unlock estate assets.

A reseal is when a court in one country (New Zealand in our case) takes a grant of probate or letters of administration made in the court of another country and puts a second seal on it. That transforms the document into a grant of probate that is only valid in Australia, for example, to a grant of probate that is valid in both Australia and New Zealand. 

If you were to present the original grant of probate from Australia to the bank in New Zealand, they would not accept it and refuse to release the assets. If you were to get that same grant resealed in New Zealand, the bank would accept it because it would have the seal of the New Zealand High Court on it.

Reseal - common issues

Each state in Australia produces a slightly different probate document and have their own procedures. The state of Victoria has even introduced a revolutionary system to file an application for probate electronically, but these differences can cause problems for reseals.

A common issue we are experiencing at the moment is probates where the will is not attached, especially with probates from Australia.

Letters of administration are granted when there is no will, so nothing needs to be attached to the grant of letters of administration for us to arrange a reseal. 

However, with a grant of probate, the will needs to be attached to the probate by the court which issued the probate (it doesn't work if a copy of the will is attached to the probate by anyone other than the court which granted it[SB1] [GU2] ) in order for our court to grant a reseal. 

This has generated some issues when other courts change their process so that the probate they produce does not have the will attached.

We have also recently had a client whose lawyers in Australia obtained probate, and the will was attached, but the lawyers decided the document was too bulky and removed the will and sent us only the first page of probate.

What the court will require if:

• There is no will attached to the probate, but the court supplied a copy of the will:

confirmation from the court that issued the probate that the will supplied is indeed the last will of the deceased. The confirmation must come from the issuing court, not from the solicitors that acted to receive it. 

• There is no will attached to the probate, and the Court did not supply a copy of the will:

a copy of the will produced in a way that our court can be confident that it is the will associated with the probate, for example, it has a cover letter from the court that issued the probate or has been certified by a court officer.

For more information

If you are dealing with an estate where a reseal is required in New Zealand, please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, especially those coming from overseas. We can make these complex applications simple and painless for you.

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.

Read more articles

COVID-19 - The Effect on Probates

Many legal processes have been altered substantially during these unprecedented times to take into account the temporary inability of people to sign documentation face-to-face. Applications for probate and letters of administration are no exception.

While stopgap measures have been enacted through emergency legislation and with new and creative procedures for some legal processes, probate and letters of administration applications (being in their nature not usually terribly urgent) have in a sense ground to a halt.

Emergency legislation has allowed people to sign wills without the usually necessary two witnesses in the same physical place with them. Even before the legislation was passed, lawyers were creating wills and setting them up with the client so that if the client were to die before the will was signed in the usual way, an application to the court to declare the will valid (because the client had done everything to show that they intended to sign it in the usual way and they were simply prevented from doing so by the circumstances) was as well set up for success as it could be.

We have also published articles about creating wills and enduring powers of attorney and how they are signed during this time.

An application for probate has three main issues to overcome:

• Firstly, an affidavit must be signed by the executor of the will (or, in the case of letters of administration, the proposed administrator of the estate) in the physical presence of a person who is authorised to take oaths in New Zealand (usually a lawyer, justice of the peace or a notary public). While the courts, in general, are accepting affidavits which have not been signed in the usual way (or sometimes affidavits which have not been signed at all) in urgent cases, this is not the case with the High Court probate unit. This brings us to the second point;

• Secondly, even if a document such as an affidavit is signed other than in the usual way (for example, by audiovisual means), the most important thing is not how the document is actually signed but whether the organisation that is being presented with the document is willing to accept a document signed in that way. At this stage, the High Court probate unit will not accept affidavits signed by any means other than the usual personal presence. At any rate, they always insist on original signatures so a scanned version of a document, even if it was not signed by audiovisual means, would also not be acceptable; and

• Finally, the organisation must have the means to accept and process the application remotely. While the High Court probate unit has already made great strides towards remote working during this time, they have not as yet provided lawyers with a means of sending them probate applications (other than urgent ones) to their team while everyone is working remotely. They usually will only accept applications by hand (which is our preferred method to save on waiting for the post given that we are located so close to their office) or by post. At the moment, email would be the only viable option for sending in applications.

The important exception to note is that the above does not apply for urgent applications. If an application is urgent, the High Court probate unit will accept the application by email and similar flexibility will apply in the signing of affidavits as the other courts are practising at the moment. This is in line with the philosophy in other legal processes and indeed in questions of how to complete things all around the country. If it is urgent and essential, rules will be flexible. If not, it needs to wait.

What we are doing at Morrison Kent is preparing all pending non-urgent applications for probate and checking them with our clients so that they are completely ready as soon as we move to a level that allows the affidavits to be signed in the usual way and the application to be brought to the probate unit. Nothing is stopping us from the preparation of the documentation and, using this method; we will be able to put the applications in very quickly as soon as the probate unit reopens which will hopefully avoid the rush.

We are sure that the probate unit will put in place extra resources as soon as they can resume fully to ensure that the backlog is worked through effectively. In the meantime, we continue to monitor the situation and are alert for any news as this rapidly developing situation continues to evolve.

We hope that this challenging time for the processing of applications will lead to innovation and improvement. The long and venerable history of these types of applications shows us that improvement and innovation are the foundation of this entire system – this is simply the next chapter.

For More Information

If you're interested in reading about the fascinating history of probate applications, we have published an article about that here. And if you require any assistance with probate or letters of administration, contact our specialist Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. Please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.

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ABOUT THE AUTHOR

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.

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Probate and Letters of Administration – a helpful comparison

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.

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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.

We make these complex court applications simple and painless - contact us today

Estates with assets around the world - Probate and Re-seals

Travel and living abroad are becoming more common, and as a result, it is also more common for people to have assets spread internationally. Even while people are alive, this setup has its complications. Once people have died and the executors of their estate are trying to gather together those assets and discover who inherits them, the situation becomes even more complicated.

Every country has unique laws about who inherits assets and how to treat assets when their owner has died. But what happens when assets are in a different country to the country where their owner died?

Who is entitled to deal with those assets?

If you are not already familiar with probates and letters of administration, read our recent article "Probates and Letters of Administration – what are they?". Essentially after anyone has died their assets cannot be sold, cashed in or the bank accounts closed until an executor is appointed. The court appoints the executor in what we call a grant of probate. (In the case of letters of administration this is known as the administrator of the estate. For the purpose of this article, we will refer to probate and executors as our example.)

Usually, the executor will be appointed in the country where the deceased has lived and died, and that is reasonably simple. All assets in that country can be dealt with by the executor under their grant of probate because the grant of probate is acceptable to all the organisations in that country. 

When there are assets in a different country, the organisations there will not accept a foreign grant of probate. They cannot be sure that it is valid unless it comes from the court in their own country and so will not release the assets they are holding.

 So what can be done?

The easiest way to get around this issue is to get a reseal of the probate. This process still requires an application to the court in the country where the assets the executor wants to access are located, but it is a much shorter application than an application for probate. A reseal is attainable only between Commonwealth countries.

 If the two countries are not both Commonwealth countries, then a fresh grant of probate is required.

Who is entitled to inherit those assets?

The laws that deal with succession are so different across the world that sometimes even wills are overridden by the succession laws of different countries.

The principle of international law that applies to decide which laws apply to any given property in an estate is called lex situs. 

Lex situs states that if an item of property is land (or attached to land - like a house or a building), it is covered by the law of the country where that land is situated. If the asset is anything other than land, it is governed by the laws of the country where the person who owned the asset was domiciled when they died.

FOR MORE INFORMATION

We specialise in dealing with these complex asset structures and have a wealth of resources and a network of international connections to untangle even the most internationally spread-out of estates. 

For more information or to discuss these matters, please don't hesitate to get in touch with our probate specialist Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com 

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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.

We make these complex court applications simple and painless - contact us today

What is Probate and Letters of Administration?

Under normal circumstances, each one of us is the only person who can deal with our assets. Our house, our bank accounts, our insurance policies – you’ll have all had the experience of contacting an organisation and being given the Third Degree to find out that you are in fact you. It’s a pain!

In the same breath, we can all appreciate why that is necessary. We’d hate for someone other than ourselves to be able to show up to the bank and access your bank accounts.

Keeping this in mind, when someone has died:

• How are your assets accessed and dealt with?

• How does the organisation being approached know you’ve really died?

• How do they know who they should be dealing with in relation to your assets?

• How do they know that this person will administer your assets in accordance with your last wishes in your will?

When organisations become aware that someone has died, they “lock” all your assets to avoid just this type of situation from becoming a problem. If you are not around to manage your assets, they do not want any unauthorised people to start managing them for you.

All your assets no longer belong to you when you have died; they now belong to an entity called your “Estate”. The only people who can run your Estate are the executor(s) of your will.

This is where probate is required.

PROBATE

Probate is the golden key that allows the executor of your Estate to unlock your assets.

Your lawyer obtains a grant of probate for the executor of the Estate by applying to the High Court where the executor proves and promises that:

• you really have died;

• they really are the person who is entitled to be the executor; and

• they will use all your assets in accordance with your last wishes in your will.

The High Court checks that the applications are in order and, if it is, they send out a document called probate.

LETTERS OF ADMINISTRATION

What is a grant of letters of administration?

Although it sounds slightly more complicated than probate, it is precisely the same thing except it is for an estate where there is no will.

It serves the same function; it just has a different name. In the case of letters of administration, the executors are called the administrators, but again they do the same job.

THE PROCESS

If you are an executor of an Estate, the best way to obtain probate (or letters of administration) is to contact one of our specialist lawyers, who will make the application for you.

The High Court typically takes 6-8 weeks to consider the application and issue the grant.

Once the grant is made, the Estate administration can begin in earnest as the executor will for the first time have access to all the estate assets.

Keep in mind that if the entire Estate’s assets amount to less than $15,000, you can usually obtain access to the assets without probate or letters of administration, so it is worthwhile checking the figures before making an application – we can also assist with this process.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy, we have specialist knowledge and a wealth of resources to make your application for probate or letters of administration as simple, efficient and painless as possible. If you think you might need probate or letters of administration, email Jenny Lowe on jenny.lowe@nzprobatesandreseals.com.

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About the author

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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.