How to find a Will for probate

In our last article in our Prickly Probates series, we talked about how to make probate application when the original will has been lost.  A question we get often is, if someone has died and you suspect there is a will but can't find it (or you have no idea whether there is a will or not), how do you find the will?  You can't get very far applying for probate unless the will (or at least a copy) has been found, so we felt this warranted an article of its own.

The papers of the deceased

The first step is to go carefully through the papers of the deceased.  Usually, when someone makes a will, the lawyers give a copy (or sometimes the original) to that person to keep with their important papers. 

If you find a copy of a will amongst these papers, it will usually have the name of the firm that created the will printed somewhere on the will itself (often on the covering page) which allows you to get in touch with that firm to see if they are holding the original.

Wills held by law firms

If a search through the papers of the deceased turns up nothing, then the next step is to see if any law firms are holding the will.

Unfortunately, there is no register of wills in New Zealand as there is in some other countries so there is no easy way to find a record of all the wills in New Zealand all in one place.  Instead, wills are usually kept by the lawyers who made them (or, if the deceased had moved on to using new lawyers, the will and other important papers are typically moved on to the new lawyers with them).  If a law firm ceases to exist, it always hands its wills safely to another (usually local) law firm so that they are never lost.

In many law firms, there is a member of staff who looks through the death notices in the newspaper every morning and checks to see if the firm is holding a will for any of those people.  If the firm is holding a will, they contact the family of the deceased, so sometimes a search for the will by the family is not necessary at all.

The easiest way to find out which lawyers might be holding the will is if you find other documentation from lawyers in the papers of the deceased (or you know the deceased dealt with a certain firm of lawyers), to contact those lawyers first and see if they are holding a copy of the will and, if not, if they know what lawyers the deceased went to after them so that you can ask those lawyers.

Lawyers usually have very good systems in place, especially for wills, to ensure that they have a record of what they are holding and also a record of where those documents went after they left.

If the deceased lived in a smaller town, sometimes contacting all the lawyers in that town (as in smaller towns there are often only a few firms) is the easiest way to determine who the lawyers for the deceased were.  People do not always necessarily use lawyers in their town, but often they do so it is a good start.

If you can't find the law firm that is holding the will in any of the above methods, the next step is to place an advertisement in a newsletter for lawyers that goes to all of the lawyers in a certain area (or often it is more efficient to place the advertisement in the newsletter that goes to all lawyers in New Zealand). The advertisement gives the name and date of death of the deceased and contact details for any firm which is holding a will to contact.  In each firm, there is a member of staff who goes through these lists each week and checks to see if that firm is holding any of the wills that are being searched in this manner.

If no will can be found

If all of these methods above have been tried and no will has been found, then most likely an application for probate won't be possible and you will instead make an application for letters of administration (which is a very similar application but in a case where there is no will).  For a handy comparison of probate and letters of administration, see our article here.

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@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.

Read more articles

Prickly Probates Series – Lost Wills

Prickly Probates Series – Lost Wills

This is the second installment in our Prickly Probates series and in this article we look at the issues that arise when a will is lost and the options available to apply for probate nonetheless.

There are many different ways that an original will can be lost:

• the person who wrote the will can hold the original will and lose it themselves;

• sometimes when the person who wrote the will is holding the original and their living accommodation becomes disorganised before they die, the original will can be lost simply because the family of the deceased person fail to find it in their possessions following their death;

• sometimes, when lawyers apply for probate (which requires posting the original will to the High Court), the letter is lost in the post (we walk all our probate applications to the court in person to ensure that this never happens!); or

• occasionally, the original gets lost at the lawyer’s office where they have been holding it (although this is rare because usually, lawyers have a very disciplined deeds system in place).

Whichever way the will becomes lost, the High Court cannot produce probate in the usual way unless the original will is produced to them, so you have a Prickly Probate Problem.

If the original will has been lost and no copy of it can be found after a thorough search, then an application for probate cannot be made and the correct application to make would be an application for letters of administration (which does very much the same thing as probate but covers the situation where there is no will).

Oftentimes, however, the reason that you know the will is lost is because you have a copy (or sometimes a draft of it), but you cannot find the original.  If this is the case, it is sometimes possible to make an application for probate of the lost will in which the court accepts the copy of the will as if it were the original.

PROBATE OF A LOST WILL – DIFFERENCES FROM A NORMAL PROBATE APPLICATION

The main differences with an application for probate of a lost will are:

• that probate is granted on the copy of the will (not the original);

• that the grant of probate is limited until a more authentic copy (or indeed the original, if it ever turns up) is used to apply for probate;

• for all probate applications, the executor of the will is required to sign an affidavit for the court, but in these applications, there also needs to be a second affidavit from someone supporting the application.

The second affidavit supporting the application and what it needs to include shows the heart of the differences in this type of application.  There are a number of extra facts that need to be proved to the court before they will grant the probate:

• that the original will existed;

• that it was signed correctly so as to be a valid will in New Zealand;

• that it was not revoked;

• that it was accidentally lost or destroyed; and

• that the contents of that original will are contained in the copy (or draft).

In some circumstances, these extra facts are quite easy to prove. 

If, for example, the will was held with the lawyers of the deceased and they made a probate application, but the original will got lost in the post on its way to the High Court, then the lawyers for the deceased can sign an affidavit explaining what has happened and attaching the copy of the will which they took from their file.  In that situation, it is clear that the original will existed (the lawyers will swear to this in their affidavit as they saw it) and that it was signed correctly, not revoked and accidentally lost in the post.  Lawyers almost always take a copy of a will for their file, so they can swear in their affidavit with confidence that the copy on their file represents the contents of the original will that was lost.  This fact scenario represents one of the most simple versions of this application.

In other circumstances, proving all the facts that the court will need is more difficult.

An example of this is the case where the lawyers cannot find the original signed will in their deeds system and they only have a draft of the will (not a copy of the signed original) in their file.  Unless somebody at the firm can remember signing the will with the client and placing the fully signed will into the deeds system and the deeds records show that the will was not taken out of the deeds system and given to the person who made the will, then it is not possible to prove everything that the court needs to know.

THE PRESUMPTION OF DESTRUCTION ANIMO REVOCANDI

A tricky rule in this area of the law is 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.

This presumption is one of the reasons why we recommend that you leave your original will with your lawyers for safekeeping in their deeds system.  Even if the lawyers lose the original will, they generally have good enough systems in place to ensure that they can still receive a grant of probate of a copy of that will so that your wishes are still followed and you don’t end up in a situation where, despite your best efforts, you are treated as if you do not have a will at all.

FOR MORE INFORMATION

If you have a deceased friend or family member and their original will cannot be found, get in touch. You still have plenty of options and we can work through with you which one will achieve the best outcome for the estate and make whatever application is required to get the estate sorted.

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 rarely be required to make. Your client need not know we exist; they just receive an efficient and painless grant and attribute that success to you!

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@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.

Read more articles

Prickly Probates Series – Mentally Incapable Executors

Prickly Probates Series – Mentally Incapable Executors

The first in our Prickly Probates series – People are living longer nowadays as a general rule than they did in previous generations, and while this is lovely in so many ways, it is also causing a prickly issue for probate applications to occur more often. 

When someone is appointed as an executor of a will, and they are still alive when the will-maker dies, they are obliged to either apply for probate and administer the estate or to step down as the executor (which allows somebody else to apply for probate and administer the estate). Accordingly, if someone is appointed as executor when the will-maker dies, and that person is not capable mentally of doing either of the above, that creates a Prickly Problem for the Probate Paperwork.

This scenario can come up in any situation but it is particularly often the case when an elderly couple appoints each other as executors in the first instance. Sometimes the surviving spouse, while alive, is not mentally capable of administering the estate of their spouse once their spouse has died.

Happily, there are a number of options to deal with the issue:

THE WILL ITSELF

The will itself provides the easiest solution to this problem if the wording allows it.  If the will appoints an executor on the conditions that they are both:

• alive; and

• able to be the executor;

an executor who is not mentally capable can be simply passed over for the next executor in the list of executors in the will (or any other executor who is appointed jointly with them). 

However, many wills appoint the executor only on the condition they are alive, which means that if they are alive but not able, from the court’s point of view, they still expect that executor to apply for probate themselves.

RENUNCIATION

In some cases, the will wording is less important.  If the executor is not up to completing the estate administration, but they are well enough in their mind to understand their decision to step down as an executor, they can sign a document to step down as the executor which is called “renouncing probate”.

If renunciation is possible, then it is not important what the will says about the conditions for an executor to be appointed.  The executor simply can step down by signing the renunciation document, and that is the end of the issue. Whoever is the next executor in the list of executors in the will can then apply for probate themselves.

PROBATE TO THE ATTORNEY OF MENTALLY INCAPABLE EXECUTOR

There are many situations, however, where:

• the executor is not able to renounce; and

• the will either does not provide for that executor to be passed over due to mental incapacity; or

• the will does allow the executor to be passed over due to mental incapacity, but there are no other executors in the will to use as an alternative.

It is in these situations that an application for probate to the attorney of a mentally incapable executor is most appropriate (and very helpful).

Essentially what this application does is allow someone who has been appointed as an attorney for the mentally incapable executor under an enduring power of attorney to apply for probate on their behalf and perform that executor’s duties in administering the estate on their behalf.

In the example of an elderly couple used earlier, the people who have been appointed attorneys under an enduring power of attorney for the surviving spouse are, more often than not, the couple’s children.  These children are also usually the beneficiaries of the will once both parents have died, so it makes good sense that they should take on the role of executor for their deceased parent.

This procedure can also be used for someone who has been appointed a property manager for the mentally incapable executor.  The main difference between an attorney in this context and a property manager is that the enduring power of attorney is signed by the person who has become mentally incapable before they became mentally incapable. Therefore the attorney is appointed by that person.  Becoming a property manager, however, happens after the person in question has already become mentally incapable (and they have not already signed an enduring power of attorney) and the property manager is appointed by the Family Court.

DIFFERENCES FROM A USUAL PROBATE APPLICATION

There are many differences from a usual application for probate in an application like this, but the main ones are:

• the GP of the executor who is mentally incapable has to sign their own separate affidavit for the court which explains that the executor is not capable to administer the estate;

• a copy of the enduring power of attorney must be provided as an exhibit to show who has been appointed the attorney under that document; and

• the probate that is granted to the attorney for the mentally incapable executor is limited until:

  • the mentally incapable executor regains mental capacity and applies for probate themselves;

  • three months from the date of death of the mentally incapable executor;

  • the attorney ceases to be the attorney of the mentally incapable executor under the enduring power of attorney; or

  • the court removes the attorney as executor due to:

    • absence from New Zealand;

    • their wish to be removed; or

    • their incapacity to complete the role of executor.

FOR MORE INFORMATION

If you find yourself in the unenviable situation of requiring a grant of probate when the only possible executor is mentally incapable, get in touch. We can take you through your options and make this complex application simple and painless.

If you are a lawyer struggling to make one of these applications for a client, you might consider using us to complete the application for you. We run a service where we prepare the application, send it to you to sign with your clients, and then we make the application to the High Court. Once complete, we send the successful grant back to you. 

Your client need not know we exist (we are simply charged as a disbursement on your invoice to your client) and because we are experienced in making these applications and within walking distance from the High Court probate unit (so our applications are hand-delivered instead of relying on the post back and forth to the court), we can save you and your client time and money. Instead of having to come up to speed on a complex application, you will rarely have to make; we’ll make these applications straightforward and painless for you.

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@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.

Read more articles

What is the difference between a trustee and an executor of a will?

If you have read a will, you may have noticed that there is a person (or people) appointed as the “executor and trustee” of the will.  This is the person who applies for probate of the estate.

In modern will drafting, it is rarely the case that a different person is appointed executor to the person who is appointed the trustee; they are almost always the same person (or people) with two titles, which seems unnecessary to say the least.

You might also notice that it is confusing to call someone a “trustee” of a will when most of the time when we talk about a “trustee” in terms of people’s personal assets we are talking about a trustee of a family trust.  That confusion holds the answer and another interesting journey through the history of estate administration and probate practice.

THE ROLE OF TRUSTEE

The basic definition of what it is to be a trustee is to be someone who holds assets on behalf of someone else (and there are specific rules and expectations on that person and on how they treat the assets).

Accordingly, you can see the similarity between a trustee of a will and a trustee of a family trust.  They are both the legal owners of certain assets (i.e. the estate’s assets or the trust’s assets), but they are not the owners in the sense that they can use those assets for whatever they want; they are holding those assets for the benefit of others (i.e. the people who are due the inheritance from the estate or the people who are entitled to benefit from the assets of the trust).

In fact, the reason that the “trustee” name is the same is that the second part of estate administration (the part where the estate funds are all gathered together and held for a time) is a type of trust.  It is a much simpler form of trust than a family trust in that its terms spelling out what the trustees can and cannot do (other than the laws governing trustees in general) are contained in the will (which is usually only 2-3 pages long). In contrast, a family trust’s terms are contained in a trust deed which is often 10-30 pages long, but it is at heart a trust nonetheless.

Sometimes the trust in a will lasts for a very short time while the estate is sorted and paid out (6 months to a year) and sometimes it lasts much longer.  If, for example, some of the beneficiaries are young children and the will stipulates that their inheritances must be held for them until they turn a certain age or if the will grants an interest in an asset (such as the family home) to one of the beneficiaries until that person dies, this type of trust can last for decades.

THE ROLE OF EXECUTOR

There is more to an estate than just holding money, however. Many jobs are peculiar to a situation where someone has died such as arranging their funeral, finding out what all their assets actually are, making sure those assets are safe and secure and selling or taking control of those assets.

These are the jobs of the first part of estate administration, and they are the jobs of the special role called “executor”.

The executor’s role has always been important, but especially so in earlier times where the framework of government and asset-holding organisations was not as seamless as it is now.  As our system of probate and estate administration comes almost entirely from England, I am referring back to England as it was, say, 150 plus years ago.

As an example, there needed to be someone whose job it was to make sure the deceased was buried.  You can imagine a situation (perhaps in a novel by Dickens) where a deceased person has an extravagant wish for their burial which their assets at death cannot afford or where their family cannot agree on where to bury them (in fact, this fact scenario does not require going back as far as Dickens – it was played out in recent times in New Zealand in the well-known case of Takamore v Clarke in 2012).

This was clearly enough of a problem to be a concern to the government (and a public health hazard) because there is a rule of estate administration which says that no matter what the deceased’s wishes were or what the deceased’s family’s intentions are, it is up to the executor to decide on how and where to dispose of the deceased person’s body.  This ensures that lengthy battles of families or unrealistic expectations of the deceased cannot lead to a person remaining unburied (or nowadays cremated) for very long because the executor can take control and do what is practical.

THE RELATIONSHIP BETWEEN THE EXECUTOR AND TRUSTEE ROLES

Historically, two separate people were sometimes appointed in these two roles, but that has long fallen out of common practice.

Most people use the terms executor and trustee interchangeably now, and in modern estate administration, there isn’t usually much call to do otherwise.  As they are the same people, why bother? 

However, it is worth knowing the difference for two main reasons.

Firstly, different rules apply to the behaviour of an executor to that of a trustee, and many special rules apply only to executors.  Usually, the roles occur one after the other: executor first followed by trustee, but sometimes someone can be acting as both on different tasks at the same time. While the rules rarely clash with each other, they are quite distinct.

Secondly, knowing the difference and why there is a difference makes the realm of estate administration and probate practice with its diverse and archaic terms more approachable and less frustrating for those who are unlucky enough to enter its gates unexpectedly.

FOR MORE INFORMATION

If you are struggling through the mire of estate administration terms, our probate expert Jenny Lowe is here to help. 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@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.

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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The History of Probate

In our recent article about the steps to obtaining probates, we introduced you to some of the eccentricities of probate applications and the terms used in them.

In this article, we will take a more in-depth look at the history behind probate.

Probate, letters of administration, trustees, executors, administrators and all manner of sentences that don’t quite make sense in modern plain English; you might have wondered why these are necessary and why they exist (as do many lawyers!).

The answer is not as complex as you might think. The circumstances of an estate present a problematic situation for the law: there is often a reasonably large amount of money which needs to find a new home and the person whose money it was is not around to dictate exactly what happens after they have died.

As a response to this, the law (because this is New Zealand, we are talking about the laws of England and the United Kingdom primarily) over many hundreds of years has created a process for dealing with these situations. The process is, because of the vast amount of time that has passed since it began, steeped in history, historical terms and historical eccentricities.

In earlier times (even a hundred years ago) many of the terms in these applications were recognisable (albeit sometimes only to lawyers) because they were used more commonly in all areas of law. The way that the court determines the application would have been recognisable to the proverbial Knight in Shining Armour; applications for probates, letters of administration and reseals are the only surviving applications from the Mediaeval writ system of justice.

In the writ system, if you had any complaint to bring before the court, you could only be successful if you did two things:

• your complaint was good enough to win the case based on the law (which is still the case today); and

• you filled out your writ correctly (which is not the case today except for applications for probates, letters of administration and reseals).

The writs were collections of words that you would fill out with the details of your case.

A fanciful example would be: “I, [full name here], do hereby allege that [full name of defendant here] failed to paint my fence on [date here] when I had already paid him the sum of [$amount here] to do so.”

Your lawyer would fill out the writ, bring it to court, and the court would decide based on:

• Was this the correct writ for the situation at hand?

• Was the writ filled out correctly? Did the situation actually warrant some compensation for you? Only at this late stage did the court actually look into whether your friend did paint your fence and whether his failure to do so meant he owed you some money.

The skill of picking the correct writ and filling it in perfectly was incredibly important, because if your lawyer’s writ was the wrong one or the lawyer left out or misspelled a single word, you would lose the whole case, regardless of whether your complaint was valid or not!

Therefore, if your name was Angus and your lawyer wrote “Agnus” in the writ to the court in the example above, your friend got away with not painting your fence, still being paid and there was legally nothing you could do about it.

As you can imagine, that situation often produced a rather unfair result. So the law, on the whole, has moved away from this system to one where the exact wording of the documentation given to the court is less important (although still important to get right in principle) than the validity of the complaint itself.

But not so for applications for probates, letters of administration and reseals.

The same issue with mistakes applies today as it did hundreds of years ago. If you were to get a single word wrong in the probate application, even the mismanagement of page numbers, the court would pick it up.

Happily, the court does not throw out the whole application now if the words are incorrect, but they certainly do send it back and ask for it to be amended until it is perfect (or very close to perfect). Picking the correct application to make, especially if the situation is complex, is also an important skill and the court will insist that a new application is made in the correct form if the one chosen doesn’t accurately cover the situation at hand.

Technically, it is possible for a non-lawyer member of the public to make an application to the court for probates, letters of administration or reseals. But, the above complexity is why many people choose a lawyer (and ideally a specialist lawyer in these types of applications) to make the application instead.

Obtaining probate can be an overwhelming process. While it is complicated, we can ensure that your experience is painless and straightforward. At Morrison Kent, we also run a service to make these applications for fellow lawyers if they lack the expertise, the time or the inclination to do so themselves.

FOR MORE INFORMATION

If you are struggling with a Mediaeval writ, or you generally need a Knight in Shining Armour in this area of the law, our probate expert Jenny Lowe would be delighted to assist. Jenny is one of few legal specialists in New Zealand for these types of 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.

Read more articles

Probate - Step by Step

Obtaining a grant of probate can seem like an overwhelming process. While it is complicated, we can ensure that your experience is painless and straightforward.

Probate applications are some of the most challenging applications to make to the court. They are the only surviving vestige of the mediaeval writ system, a system of law in England which required the application to be made using precise words. If completed incorrectly, even with the slightest error in its wording, the application will be denied. Accordingly, the wording of the documents that you will see is archaic and sometimes hard to follow or doesn’t follow common sense.

For example, there is a part of the affidavit where the executor must tell the court when the deceased died. Instead of saying “the deceased died on 1 January 2020” (which is perfectly accurate and what it says in the death certificate), the application must say “the deceased died on or about 1 January 2020” unless the death certificate gives an exact time of death (which it rarely does).

The people who make the application for probate are the executors listed in the will. Sometimes not all of the executors in the will wish to (or can) make the application for probate, or sometimes none of them can or do. In these cases, we can make similar applications by the remaining executors or someone else if there are no remaining executors.

OUR PROCESS

This article gives you a step-by-step summary of what the process looks like for simple probate when you engage us right through the process, to when the court produces the grant of probate:

Our first step is always to take your instructions which involve us asking you for information and documentation about the estate.

Examples of what we require include:

• Date of death (which is often provided by giving us a copy of the death certificate);

• The updated addresses and occupations of the deceased and the executors (sometimes the will gives addresses and occupations for the deceased and the executor, and if these are out of date, the probate application has to note the current details);

• A copy of the will; and

• Whether you would like to swear the affidavit (which involves holding the Bible) or whether you 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);

PREPARING THE APPLICATION

We then prepare the application for the court based on the information you have given us.

These next steps are as follows:

• We send you the affidavit which is the part of the application that the executors have to sign, and so you need to check that everything it says is true and correct from your point of view;

• Once the application is prepared, the executors must sign the affidavit. You can sign this by seeing any solicitor in New Zealand who will usually take an affidavit free of charge. If you are overseas, you will need to see a notary public to sign the affidavit;

• Once the affidavit is signed, we complete the rest of the application and submit it to the court. 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 6 to 8 weeks to produce the grant of probate once the application has been received, but, if the circumstances require it, we can make an urgent application which only takes 2 to 4 weeks.

LETTERS OF ADMINISTRATION

When you’re applying for letters of administration, the process is a bit different. Letters of administration serve the same purpose as probate; it just covers a situation where there is no will (whereas probate is for the case where there is a will).

For more detail on the difference between probate and letters of administration, see our article for a handy comparison here.

Because there isn’t a will, we will need a bit more information such as:

• The names, addresses and dates of birth of all the children of the deceased;

• Whether any of the children were adopted;

• The names and addresses of any current spouses or de facto partners of the deceased; and

• The gross value of the estate (which can be a rough figure).

There are many ways in which a probate application or an application for letters of administration can be more complex and, in each of these situations, we make a slightly different application to the court. Sometimes the application is so complex that it is worthwhile for us to take all of your instructions, prepare all of the documentation and then send it to the court for them to check before the executors even sign it.

On the whole, the court is very particular about these applications (because they are the evolved version of the writ system) and it is not uncommon for them to come back requiring further information or further documentation. Having said that, usually if the court comes back asking for something further, it is good news. It indicates that the application is on the front of their list, and it is almost always quite easy for us to send further information, which then means that the application will soon be granted.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy we have one few legal specialists in New Zealand for these types of applications, covering both the simple and the complex. Jenny Lowe is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand.

Jenny can also provide a service for other solicitors who might dislike these applications or don’t do them often. We can complete the applications on another solicitors behalf and can even be completely invisible to the clients, which helps to alleviate the struggle for solicitors that are less familiar with the process and reduce the delay for clients when making a probate application. So, if you have any issue or matter relating to probates, or require a simple solution to deal with the application process more efficiently, don’t hesitate to 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.

Read more articles

What is a Reseal?

In New Zealand, both probate and letters of administration can be granted for an estate where the deceased lived and died in New Zealand. They may also be granted for estates where the deceased lived and died in another country, but had assets in New Zealand.

These applications are reasonably complex. However, there is a simpler alternative. If you have an estate which meets certain criteria, an application for a reseal can be made.

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 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.

A reseal is when a court in one country, New Zealand for example, 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 from a grant of probate that is only valid in Australia, for example, into 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 a 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 a seal from the New Zealand High Court on it.

How do you get a reseal in New Zealand?

To be able to apply for a reseal in New Zealand, both the country where the grant originates and the country where you wish to reseal it must be commonwealth countries. The exception is Hong Kong which is included by statute as one of the countries where a reseal can be made in New Zealand.

The original grant of probate or letters of administration (or a copy, certified on every page by the court which made the grant ) must be given to the High Court of New Zealand. Then the original or copy will be returned once it has been resealed and it will bear that second stamp.

FOR MORE INFORMATION

Here at N.J. Lowe & Company - Probate Law Consultancy, we have one of the few lawyers who specialise in obtaining reseals, probates and letters of administration from the New Zealand High Court for international estates with assets in New Zealand. If you are acting for an estate with assets in New Zealand, get in touch with Jenny Lowe today on jenny.lowe@nzprobatesandreseals.com for a painless and straightforward approach to your application for a reseal or any other related application that needs to be made.

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About the author

04 916 0153 | 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

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.