When a loved one passes away it can be a stressful time for the family, which can be made more difficult when the deceased has not left a Will. Where the deceased has left a Will they will have named their executor or executors (their representative(s)) in that Will.
The role of an executor is to administer the deceased’s estate. This may include settling outstanding debts owed by the deceased, and distributing the deceased’s estate in accordance with the deceased’s Will.
Before an executor can administer the estate of the deceased, they must first obtain Probate.
What is “probate”?
Probate is a court order determining the Will of the deceased as being true and authentic. The executor(s) is/are appointed in this order. Upon the making of the order, the executor(s) then has/have the legal authority to deal with the deceased’s estate.
How do I apply for probate?
The executor(s) named in a Will must make an application in writing to the Wellington High Court for probate. The application must be in a specific format, as prescribed by a set of rules called the High Court Rules.
An application for probate may be filed in one of two ways either by way of ‘probate in common form’ or by way of ‘probate in solemn form’.
An application for ‘probate in common form’ is usually made on a ‘without notice’ basis, where the application is made without notifying anyone else, on the basis that no one will contest the Will.
In the event that it is highly likely that someone will contest the Will, an application for ‘probate in solemn form’ will need to be filed. In these circumstances the relevant parties will be notified of the application and a trial at High Court will proceed, for which the parties will probably need legal advice.
What would I need to make an application for Probate?
The High Court application fee for obtaining Probate is currently $200.00; this would need to be paid together with the filing of the following documents:
- The original Will (not a copy);
- An application for probate in common or solemn form;
- A sworn statement (affidavit) from the executor(s) which includes the following information;
- The person who made the Will has died;
- They knew the deceased;
- Where the deceased was living when they died; and
- Confirmation that the Will is the deceased’s last Will.
How long does this process take?
If the Application has been drafted correctly, in the prescribed from, and filed acceptably with the Wellington High Court, it may take four to six weeks to process the application. However, it could take longer if the High Court is busy or the application is complicated.
This timeframe may also be drawn-out in the event that the application has not been drafted correctly and/or the High Court raises issues with the application. Delays of this nature have the potential to cause a number of problems between the beneficiaries, and can affect an executor’s ability to administer the deceased’s estate, particularly if immediate action is required (which it often is).
With that in mind, legal advice should obtained when making an application for Probate.