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.
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the executors (sometimes the will gives addresses and occupations for the deceased and the executor, and if these are out of date, the probate application has to note the current details);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 if we don’t already have it on file; 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);
Once we have the above information, we will give you our estimate so that you know how much our work is likely to cost.
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 run an automated system to initially create the documentation which makes this procedure far more efficient than completing it by hand;
- 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 coming to see us at our offices or seeing any other 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
At Morrison Kent, 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. Morrison Kent can complete the applications on another solicitors behalf, 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 on 04 916 0153 or email firstname.lastname@example.org.