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Probate. What is it and why is it needed?
A loved one passing away is a difficult and stressful time, and often the process that follows can be overwhelming and confusing. If that person had a Will and has assets worth over $15,000.00, then you will need to apply to the High Court for probate. Probate means “to prove”, and essentially is the process of proving the Will before the Court. Probate is required before the assets of the estate can be called in.
The Executor/s named in the Will are the parties who need to apply for probate. A Solicitor can prepare the required documents which include an application, an affidavit by the Executor/s and the probate itself. There are very specific requirements for these documents, and the original Will and certified copy of the death certificate are required to prepare them. The Executors will need to swear or affirm the affidavit with the Solicitor before they can be sent to the Court.
Additional documents will be required if any of the Executors want to renounce their role, or if the original Will has been lost or looks like it may have been tampered with – for example a staple being removed, or marks left by a paper clip.
Once received by the Court there can be delays in processing, currently we are seeing up to four months for a probate application to be reviewed and often the Court comes back asking for changes or more documents. Once probate is received, the Executors will be able to deal with the estate assets, including calling in Kiwisaver funds, insurance policies, transferring property and obtaining funds from the deceased bank accounts.
Distribution of the estate can take place six months after probate is received, so when you factor in the Courts processing time it can be a lengthy process. If the assets of the estate are less than $15,000, probate is not required. If the deceased did not have a Will, then a similar process is required, but instead of probate you must apply for letters of administration.
Whatever the position, we can guide you through the process.
Elyse Crowther is a Registered Legal Executive for ClearStone Legal
p: 09 972 1920
