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What happens to estate assets if you die without a Will?

There are many misconceptions surrounding the process for winding up a deceased’s affairs. Many people believe that notifying the family of their wishes is sufficient and that those wishes will be carried out when they pass.

Unfortunately, this is not the case in New Zealand. If the deceased did not have a valid Will, the Estate will be distributed in accordance with the Administration Act 1969. Section 77 of the Administration Act 1969 specifies who is entitled to benefit from the estate.

Although the legislation is quite detailed, it doesn’t always cover the nuanced relationships families may have and can unintentionally exclude people the deceased may have wanted included in the distribution of their estate.

There are many decisions that need to be made on behalf of the estate and many requirements that need to be met before the assets can be dealt with.

1. Determining the value of your estate.

In New Zealand, estates with assets worth more than $15,000 in the deceased’s sole name or with property held in the deceased’s sole name, must apply for a grant of administration from the High Court before the estate can be dealt with. Where the deceased did not have a Will, the grant is called “Letters of Administration on Intestacy”. You must gather information about all of the deceased’s assets before you can complete the application.

1. Appointing an Administrator.

Someone will need to be appointed to act on behalf of the estate, to make the necessary decisions, sign all of the documentation and arrange for all matters to be wound up. This person would be called the Administrator of the estate. There is an order of priority for who can apply to be the Administrator.

The surviving spouse, de facto partner or civil union partner would have the highest priority to apply, then the children of the deceased, then the parents of the deceased, brothers or sisters of the deceased, grandparents and so on. If the person with the highest priority to apply is unable or unwilling to act, the person next in line can apply. Where a person with lesser priority is going to apply to be the Administrator of the estate, they will need written consent from all persons that would have equal or higher priority to apply.

1. Advertising for a Will.

The proposed administrator (and family in general) will need to conduct a search for a valid will. This may involve going through the deceased’s records and paperwork to see if a Will can be located. Sometimes a handwritten Will is located, and this would then kick off an entirely different process to prove the handwritten document qualifies as a valid Will. In addition to searching the deceased’s records, the administrator will need to advertise for a Will with law firms in New Zealand to see if a Will was executed in the past. The advertisement for a Will must be “live” for a certain period of time, with no Will being found before the Administrator can apply for the grant of administration. There is more information later in this article addressing what happens when a valid Will is found.

1. Status of Children Act.

Another requirement that must be met is conducting a search for all biological children of the deceased (specifically those born out of wedlock where paternity has been ascertained). The Administrator will need to attest to the fact that searches have been undertaken to discover any children previously unknown to the family.

As you can imagine, gathering the requirements listed above can be a time-consuming and expensive process. This can often delay the application for a grant of administration by two to three months after death. If the deceased had a valid Will, the application could be completed as soon as five to ten days after death.

Once all of the above requirements have been met, and the potential administrator has obtained consent from the necessary parties to apply, the grant for Letters of Administration on Intestacy can be applied for. When the grant is received, the estate can be administered.

In some cases, the search for a Will is successful. This can be extremely helpful if the deceased’s personal circumstances have not changed since the Will was executed. For example, the Will was executed after all the Will-maker’s children were born and the deceased spouse, de facto partner or civil union partner was the same person when the Will was drafted and when the Will-maker died. In cases such as this, the person appointed as executor in the Will can apply for a different grant of administration and does not need to complete the above requirements.

Alternatively, a Will could be located that was executed more than 20 years ago when the Will-maker did not have any children and was not in a relationship. If, at the time of the Will-maker’s passing, they were married, the Will would be revoked, and the search would continue.

How can Pier Law help?

Instructing a law firm and executing a Will can be an intimidating task. You may have questions like, who will I leave my assets to and who will I appoint to act for my estate?

Our team at Pier Law specialises in assisting you with this process, guiding you through the necessary questions to make sure your Will accurately reflects your wishes. While there is also a cost involved in creating a Will, this is far less than the extra cost involved in obtaining a grant of Letters of Administration on Intestacy.

If you already have a valid Will, but your personal circumstances have changed since it was executed, we urge you to review it and check whether it still represents your wishes for your estate.

Need to make a Will, update a Will or have questions relating to your estate? Get in touch with our team today.