If there is no Will?
If there is no valid will when a person dies (or if the will does not deal with all of the assets) then the law sets out who is to receive their assets.
Depending on individual circumstances, this is how the estate is distributed according to section 77 of the Administration Act 1969:
- No children or partner – other close family relatives share.
- Spouse/Partner and no children – the spouse receives the estate.
- Spouse/Partner and children – the spouse receives the first $155,000 and a third of the residue. The children share the other two thirds
- Children and no spouse/ partner – the children share equally
Do I need a lawyer when a loved one dies?
Managing estates below $15,000
If your loved one’s assets fall below $15,000, you will be able to able to administer the estate without obtaining a grant of probate and lawyers will not necessarily need to be involved. Any documentation to be signed, should be signed by the executors in the will or next of kin. If you are unsure on your rights or entitlement, you should also seek legal advice.
Managing estates over $15,000
While a lawyer is not technically required for any estate, generally if there are more than $15,000 of assets in the estate you will require a formal grant of probate or letters of administration. This requires an application to the High Court. The application process is technical and generally requires the assistance of a lawyer.
At its simplest, the process for an executor is to call in the assets of the estate, pay any outstanding liabilities and then distribute the surplus assets in accordance with the will or, if there is no will, in accordance with The Administration Act.
What is the process when someone dies without a will?
When a loved one has died intestate (without a will) or there are no executors appointed under the will, the court order required to run the estate is called a grant of letters of administration.
It is an order from the Court which grants the administrator or executor the power to deal with the deceased’s assets and which third parties (e.g. banks) are entitled to rely on. This type of grant is needed if your loved one’s assets are over $15,000 and there is no will. It requires an application filed in the High Court.
There are several steps that need to be taken before the application is filed including:
Advertising for a will; Establishing which close relatives are entitled to apply as administrator and which close relatives are entitled to benefit from the estate; Seeking consent of those close relatives with an equal or higher entitlement; A status of child search.
If there is no will (intestancy) – FAQs
Intestancy means when someone dies without a will.
Under NZ law, the following are treated as your children and can inherit if you die intestate:
– Biological children, whether born inside or outside a relationship
– Adopted children (they are treated as if born to the adoptive parents)
– Children conceived before but born after your death
All recognised children are treated equally, regardless of age.
Unless you make a will saying otherwise, the following people do not automatically inherit:
– Step-children (unless you legally adopted them)
– Foster children
– Children you raised but never adopted
This can be one of the biggest surprises for families when there is no will.
If there is a spouse and children, then the spouse is entitled to the personal chattels and a prescribed sum as set by the regulations, currently this is $155,000. The balance of the estate is then divided in thirds, with one third going to the spouse and two thirds going to the children.
If the deceased had not made a will, then the Administration Act 1969 sets out what happens to the assets. Where the assets go depends on the surviving relatives the deceased had. The deceased’s parents are first in line to inherit. If their parents had already passed away, then any siblings will inherit the estate. The Act goes on to set out where the estate goes if there were no parents or siblings, grandparents or aunts and uncles, depending on the deceased’s circumstances.
Yes. If there is no will, letters of administration will apply and entitlements to the estate are set by section 77 of the Administration Act 1969.
The size of an estate will determine whether a formal grant of probate (approved by the High Court) is required. A formal grant is required where the estate has more than $15,000 of assets.