Probate is a critical legal process in New Zealand that allows the executors of a deceased person’s will to take possession of the deceased’s assets. While probate applications might seem daunting due to their historical origins and the precision required, they don’t have to be overwhelming. In this guide, we’ll provide a detailed, step-by-step overview of the probate application process in New Zealand, making it more accessible for those facing this legal procedure.

Step 1: Gathering Information and Documentation

The first step in the probate process is to gather essential information and documentation from the executors of the deceased person’s will. This information includes:

• Date of Death: Obtain a copy of the death certificate, which typically provides the date of death.
• Updated Addresses and Occupations: Ensure that the addresses and occupations of both the deceased and the executors are current. If the information in the will is outdated, it must be updated in the probate application.
• Executor Status: Confirm whether all the appointed executors are willing and able to administer the estate. If any executor has passed away, lost mental capacity, or is unable to collaborate effectively with the others, adjustments to the application may be necessary.
• Copy of the Will: A scanned copy of the will suffices at this stage, but the original will be required later in the process.
• Condition of the Original Will: Determine whether the pages of the original will are intact and whether they’ve ever been separated. Any alterations or anomalies in the will should be explained to the court.
• Affidavit Signing Preferences: Decide whether the executors prefer to swear the affidavit (with a Bible) or affirm it (in accordance with the Oaths and Declarations Act 1957) when signing the affidavit.

Step 2: Preparing the Application

Once you have collected all the necessary information, you can proceed to prepare the probate application for submission to the court. Here are the key steps:

• Drafting the Affidavit: Send the executors a draft of the affidavit for their review and approval. The affidavit is a crucial component of the application, as it must accurately represent the executors’ perspective.
• Executor Signature: The executors should sign the affidavit. This can be done with the assistance of a Justice of the Peace (JP) in New Zealand, free of charge. If any executors are located overseas, it’s advisable to engage a notary public for the signing.
• Affidavit Signing with Original Will: Each executor must sign the affidavit in the presence of the original will. Additionally, their witness should sign an exhibit note, which is attached to the original will.

Step 3: Submitting the Application

After the affidavit is signed and all necessary documentation is prepared, proceed to submit the application to the court. Here’s what you need to do:

• Application Completion: Finalise the rest of the probate application, ensuring that all required documents are in order.
• Courier Delivery: courier the probate application to the High Court in Wellington. This helps eliminate postal delays and ensures the original will is not lost in the post.

Step 4: Waiting for the Grant of Probate

The court typically takes around 8 weeks to produce the grant of probate once they receive the application. It’s important to note that delays may occur due to factors such as COVID-19 and associated backlogs. Recently, it has been taking up to 12 weeks and sometimes longer.

In cases requiring urgency, an expedited application can be made.

Step 5: Receiving the Grant of Probate

Once the court has issued the grant of probate, it is sent to the executors. They will receive a certified true copy via email, which is usually sufficient for asset-holding organizations to release assets. Additionally, the original grant of probate will be mailed to the executors for their records.

CONCLUSION:

Navigating the probate process in New Zealand may initially appear complex and challenging, but with a systematic approach and attention to detail, it can be manageable. Seeking legal assistance from professionals experienced in probate applications can also streamline the process, ensuring that the deceased person’s assets are properly administered according to their wishes. If you have a probate application to make, don’t hesitate to seek professional guidance to ensure a smooth and successful outcome.