Probate in New Zealand What probate is, when you need it, and how to get it
Cheryl Simes
Kiwilaw's usual fee for probate applications - $490
'Yield to principle, not to pressure.' — Fisher and Udy, Getting to Yes
Kiwilaw Probate and Estates Ltd - January 2023 - version 1.5
Kiwilaw Probate and Estates Ltd P O Box 85, Oxford 7443, New Zealand probate@kiwilaw.co.nz https://kiwilaw.co.nz/probate For enquiries, please use the forms and resources on our website. See also links in this booklet.
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Kiwilaw's usual fee for probate applications - $490
Table Of Contents When do you need probate?
1
How do you get probate?
5
Less than $120,000? An 'election to administer'?
6
Guide to Estate Administration
7
What is probate?
9
When do you need probate?
13
How do you get probate?
18
Less than $120,000? An 'election to administer'?
24
FAQ – Frequently Asked Questions
28
How do I uplift the original will, if it is held by a law rm?
28
Do I get the original will back, after it is sent to the High Court?
29
Can I use a certi ed copy of the original will, instead of sending the original will to the High Court?
29
Can I keep the will secret?
29
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Kiwilaw's usual fee for probate applications - $490
What happens if the will is not in English?
29
Does it make a difference if my loved one had moved from New Zealand to Australia and made their permanent home there, signed their will in Australia, and died in Australia?
30
How long does it take for the High Court to issue probate, after the application is sent to the court?
30
If I use Kiwilaw, how do you send the documents to me, for me to sign?
30
Do I have to pay you if I change my mind before you send the documents to me?
31
Are Kiwilaw’s documents as good as another lawyer’s, even though you have never met any of us?
31
Do you give a discount to SuperGold card holders?
31
Can I still use Kiwilaw if the will directs me to use the law rm that prepared the will?
31
Can I still use Kiwilaw if the executor named in the will is the Public Trust?
32
Can I still use Kiwilaw if one of the executors named in the will is a solicitor?
32
What is a ‘deed of renunciation’?
32
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Kiwilaw's usual fee for probate applications - $490
What happens if a grant of probate has already been made for an earlier will for the same deceased?
33
What happens if someone has lodged a caveat against the making of a grant of administration?
33
What happens if an executor does not want to apply for probate and wants someone else to do it instead?
34
What happens if there are two executors, one of whom will not do anything?
34
What happens if the only will we can nd was made before my loved one got married?
35
How do I check whether there is a later will than the one we have found?
35
What happens if the High Court registrar refuses to grant probate?
36
Why are your fees so low, compared with everyone else?
36
Kiwilaw sample fees - probate applications
37
Links - by QR code
38
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Kiwilaw's usual fee for probate applications - $490
Probate in New Zealand – what it is, when you need it, and how to get it
Bereavement is full of challenges. You have lost someone who was a big part of your life and probably greatly loved. Whatever the circumstances – sudden disaster, or with time to prepare, young or old – it’s no secret that this is a dif cult time.
Your loved one made a will. You are the executor named in the will (or one of several executors), and you are supposed to do whatever needs to be done. Your loved one trusted you – to get it right.
If there is no valid will, the requirements are different. This booklet focuses on what is needed when there is a valid will with at least one available executor.
Most people have little idea what is expected or required. It is not something we are taught at school.
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Kiwilaw's usual fee for probate applications - $490
Perhaps you thought everything would be straight forward – precisely because there was a will? Use ou r no-o bligati on onl screen ine ing for m now , to ch fee in eck th ‘You need to get probate,’ someone has told you – your e c a se: htt maybe the bank, maybe the Kiwisaver provider, or ps: //kiw ilaw.co .nz/pro and-sc the solicitor who holds the will. bate/e reenin nquiry g-gran t-ofadmin istratio n-in-n ew-ze aland/ More time off work? More legal fees? More
Now it is becoming more complicated.
delays?
Kiwilaw offers a unique online solution, accessible from anywhere. It produces hard-copy documents couriered to your door, anywhere in New Zealand or (for an extra fee) anywhere in the world.
In most cases, Kiwilaw's service will work for you. Occasionally a different option will work better.
I hope this short booklet will help you decide which option best suits you, for how to apply for probate. Kiwilaw is a New Zealand incorporated law f irm. Its principal lawyer (solicitor) and sole director is Cheryl Simes. Our services are accessible f rom anywhere. For important inf ormation about Kiwilaw's online services, including Kiwilaw's obligations to you as a client, and your obligations to Kiwilaw, please see our client-care inf ormation here or access f rom page 3 8.
Cheryl Simes – Director/Lawyer – Kiwilaw – Oxford (North Canterbury)
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Kiwilaw's usual fee for probate applications - $490
Overview What is probate? Probate is an order made by the High Court. It is the most common type of ‘grant of administration’ for a deceased estate. It con rms that the will is valid. It also appoints executors to administer the will.
Details - see page 9
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Kiwilaw's usual fee for probate applications - $490
When do you need probate? You need probate when: Someone dies, and Leaves a valid will, and Leaves more than $15,000 in any one nancial institution in New Zealand, AND/OR (with two exceptions) owns an interest in general land in New Zealand, and At least one executor appointed in the will is available and willing to act
If those conditions are not met, either you do not need a New Zealand grant of administration at all, or you need ‘letters of administration’ rather than probate.
If you have already obtained probate in another Commonwealth country, or Hong Kong, you may be able to apply here to reseal that grant, instead of making a new full application for New Zealand probate.
Details - see page 13
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Kiwilaw's usual fee for probate applications - $490
How do you get probate? Executors ‘prove’ the will. They make a written application to the High Court. Unless there is a dispute about the validity of the will, this application is made ‘without notice’. With the application, they produce the original signed will. The executors present evidence – in writing, not in person - to prove the facts necessary for probate to be granted. They also promise that they will execute (implement) the will properly and, if required, provide evidence of this to the court.
If you are the executor/s and need to apply for probate, you have these options for a ‘without notice’ application for probate: Option 1 - Do it yourself, with no professional assistance – research what is needed and spend your own time getting the documents right Option 2 – Do it yourself, with documents prepared by Kiwilaw – our fee is usually $490, and you do your own secretarial work (with our full instructions) – you make your own arrangements for the rest of the estate administration Option 3 – instruct your own lawyer to use Kiwilaw to prepare the documents – our fee is usually $390, and you pay the lawyer for advice, liaison with Kiwilaw, secretarial support, and any other ongoing estate-administration work you need Option 4 – use your own lawyer, or Public Trust, or Perpetual Guardian, without Kiwilaw – we strongly recommend you obtain a fee estimate before you choose this option Details - see page 18
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Kiwilaw's usual fee for probate applications - $490
Less than $120,000? An 'election to administer'? If the total value of your loved one's assets is less than $120,000, there is another option.
Public Trust can produce an 'election to administer' and send it to the High Court instead of applying for probate or letters of administration.
That makes the Public Trust the administrator of the estate. They then do the job of the executor/s.
As well as Public Trust, other trustee corporations can use an 'election to administer'.
So too - in theory - can the Maori Trustee, but only if the estate is less than $40,000 and your loved one was Maori. However, in practice, the Maori Trustee no longer does this work (see p 26).
In practice, these options are likely to cost more than using Kiwilaw.
Details - see page 24
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Kiwilaw's usual fee for probate applications - $490
Guide to Estate Administration Anyone can purchase Kiwilaw’s Guide to Estate Administration – Where There’s a Will and a
Grant of Probate (updated January 2023) online here for AUD45.00 (about NZD49.00) priced in AUD because the hosting platform does not offer NZD pricing: https://issuu.com/cherylsimes/docs/22.01.25_guide_v_1-3
If you obtain probate-application documents from Kiwilaw and hold a SuperGold card, we will send you a hard copy of the same Guide free of charge.
If you use our probate-application service and do not hold a SuperGold card, you may order a hard copy of the Guide for $49 with your application documents.
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Kiwilaw's usual fee for probate applications - $490
If you would like some light relief, you could take a quick look at comments from some of Kiwilaw's grateful clients- at https://kiwilaw.co.nz/grateful-clients/ Use your smartphone or other device to scan the QR code below (with the camera), to save having to copy the address given above.
The QR code is nothing sinister. It does not record any information from your device. It is just a visual representation of the same website address (or URL) - it takes you to the Kiwilaw page for 'grateful clients'. If your smartphone is not too smart and a bit elderly, you may need to download a QR reader from your App Store. Most recent phones will recognise and read a QR code if you merely scan it with the camera. For more QR codes, see page 37.
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Kiwilaw's usual fee for probate applications - $490
What is probate?
Made by the High Court The term ‘probate’ comes from the Latin verb ‘probare’ – to prove.
Probate is a ‘grant of administration’ issued by the High Court. It con rms that your loved one’s will has been ‘proved’. It authorises one or more executors to do what the will says.
In this context, 'will' includes also any codicils which amend the will.
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Kiwilaw's usual fee for probate applications - $490
The most common ‘grant of administration' In New Zealand there are about 12,000 grants of probate every year. In contrast, there are about 1500 grants of letters of administration.
Con rms the will is valid The High Court registrar checks the original will for any signs of forgery or interference. If anything requires explanation, this will be requested. Usually Kiwilaw has already covered this in the documents prepared for you.
Your application will include an af davit in which you provide factual evidence to con rm that this is the last will made by your loved one, and that you are the executor/s appointed by the will. If there is a later will-type document that is not valid, this must be disclosed.
If there is any uncertainty about when the will was signed, or whether your loved one knew what they were doing, or whether everyone was in the same room when everyone else signed, additional evidence may be required from one or both people who witnessed the will.
If the will was made overseas and your loved one died outside New Zealand, additional information will be required about your loved one's 'domicile' (home country).
Kiwilaw checks all this as part of the initial screening process before con rming our fee. For this purpose, we ask you several questions and require a copy of the will.
Appoints executor/s to administer the will As executor, your essential task is to execute the will - to deal with your loved one's property as set out in the will. (Property includes everything your loved one owned - money, chattels, investments, as well as 'real' property such as land or buildings.)
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Kiwilaw's usual fee for probate applications - $490
Your main tasks are to uplift funds for the estate, pay the estate debts, bring other assets under your control and protection, make decisions about the property owned by your loved one, meet tax obligations, and otherwise act as required to implement their will.
When other obligations have been met, your job is to distribute what is left to the bene ciaries (the people entitled under the will).
Download Kiwilaw's free 1-page outline of estate-administration steps - here
You must keep records that show: what your loved one owned, when they died (assets) all debts paid for your loved one (funeral bill, legal fees, unpaid bills, etc) - and any reimbursement paid to whoever paid these expenses in the rst place all income and expenditure since your loved one's death all signi cant decisions made by the executor/s who should receive what, according to your loved one's will what your loved one owed, when they died (debts / liabilities) who did receive what, and - if this was different from what the will said - evidence that everybody agreed to this tax obligations - payments, refunds, and tax returns anything else that is important, depending on the circumstances and the type of property involved In short, as executor/s, you need to be able to show how you have done your job.
You promise the High Court that you will execute the will according to law. Usually this is straight forward if you act impartially, carefully, and sensibly, and do what the will says. Sometimes it is more complicated. If any issue arises, always get speci c legal advice sooner rather than later.
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Kiwilaw's usual fee for probate applications - $490
For general guidance, Kiwilaw's Guide to Estate Administration may help (see page 7). However, it is not a substitute for speci c advice about your loved one's will, property, and family complications.
The High Court can require executors to provide a full formal accounting. This is rare. It may happen if someone alleges that the executors have not done their job properly or have not provided the right information to the bene ciaries.
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Kiwilaw's usual fee for probate applications - $490
When do you need probate?
Here we give you more details about each element mentioned on page 4.
Someone dies You cannot apply for probate before your loved one dies.
The will takes effect on death, not when it is written.
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Kiwilaw's usual fee for probate applications - $490
They leave a valid will A will is a document that was intended to take effect on your loved one’s death. It says what was to happen to at least some of what they owned, when they died. It does not have to use special wording or legal jargon.
It must have been made voluntarily, by someone who knew what they were doing. (If you apply 'without notice' for probate, you are telling the court that there is no reason for concern about this.)
The will must be signed by your loved one and be witnessed by two adult witnesses.
(If the document does not meet those requirements, the High Court can make a special order to declare the document a valid will. That requires a special application by an executor named in the will or someone who will bene t under the will. That special application is separate from an application for probate. Once the court makes an order to declare the document a valid will, the executor/s - if any - can then apply for probate. If there are no executors, someone else applies for 'letters of administration with will annexed'.)
If the will was made overseas, you can still apply in New Zealand. In some cases, evidence will be needed to con rm that the will is valid under the law of the country where the will was made.
In addition to the will, there may be one or more codicils. A codicil is a document made after the will, and in the same way as a will, which alters the will without cancelling it.
If the original signed will has been lost or destroyed, the court can grant probate of a copy. This requires evidence about how the will came to be lost or destroyed, the efforts made to nd the original, why the copy is reliable, and why the court can be satis ed that the willmaker did not deliberately destroy the original will in order to cancel it.
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Kiwilaw's usual fee for probate applications - $490
If there is (and was) no valid will, an application for ‘letters of administration on intestacy’ is required, rather than an application for probate. Different paperwork is required. (Use Kiwilaw's no-obligation screening form to obtain more guidance - see link on page 37.)
If there is a valid will but no available executor, there will need to be an application for 'letters of administration with will annexed', rather than an application for probate. (Again, use Kiwilaw's no-obligation screening form to obtain more guidance - see link on page 37.)
They leave more than $15,000 with any one nancial institution in New Zealand If your loved one left exactly $15,000 in a bank account and had no other investments with that bank, the bank can pay the $15,000 to the estate without requiring probate.
In contrast, if they left $15,000.01 in the bank account, the bank is not permitted to release those funds to the estate until probate is granted. (However, the bank is permitted to pay the funeral bill.)
Kiwisaver is often the reason probate is needed.
An insurance policy over $15,000 will need probate unless the policy speci es a named bene ciary.
They own an interest in general land in New Zealand Probate is required before any registered interest in general land can be dealt with – with two exceptions. 'General land' means land that is not 'Maori freehold land' and is in the general land registration system. Probate is not required to deal with Maori freehold land.
If your loved one owned general land (including a house, at, or apartment), or leased land, or held a mortgage over someone else’s land, that is called an ‘interest’ in land. Probate will be needed before that interest can be transferred or sold.
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Kiwilaw's usual fee for probate applications - $490
That includes the situation where your loved one owned a speci ed share of the title - maybe 1/2 or 1/3 or indeed 1/200 . Their share must be shown on the record of title.
First exception: joint tenancy One exception is if the land is owned in a ‘joint tenancy’ with someone else. That means the title shows several owners without showing them as having speci c shares. Land owned as joint tenants passes to the surviving owner without needing probate. Instead, a ‘transmission by survivorship’ is required.
Second exception: change status of land Another exception is if the land, although general land, would more appropriately be Maori freehold land. Without obtaining probate (or letters of administration), the bene ciaries under the will can apply to the Maori Land Court to change the land status from general land to Maori freehold land. If there are several other owners of the same block of land, those other owners must be noti ed and mostly agree. The judge will decide whether to change the land status. If it becomes Maori freehold land, probate is not needed.
If your loved one co-owned land, you may need to check the type of ownership by getting an up-to-date title search. (Kiwilaw can help with that.)
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Kiwilaw's usual fee for probate applications - $490
At least one executor, appointed in the will, is able and willing to act The will usually names at least one ‘executor’ (or, sometimes, ‘executrix’ – the old-fashioned term meaning a female executor).
This applies equally if the executor is named in a codicil to the will.
If no named executor is available or willing to act, or if they agree not to act, someone else can apply for ‘letters of administration with will annexed’, not an application for probate.
An application for probate as such must be made by someone who is appointed as an executor in the will (or codicil).
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Kiwilaw's usual fee for probate applications - $490
How do you get probate?
As executors, you decide whether to prepare the probate application documents yourselves or whether to use professional help.
You do not have to use a solicitor or lawyer. (In this context, ‘solicitor’ and ‘lawyer’ mean exactly the same.)
You should check the likely costs and bene ts before making a decision.
Any decision should be made jointly by all the executors, if more than one is appointed.
Once you have obtained probate, you then have a new decision: to what extent do you use professional help for the rest of the estate administration. This booklet is dealing only with getting probate.
Option 1 – do it yourself with no professional assistance You may feel able to apply for probate yourself with no professional assistance.
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Kiwilaw's usual fee for probate applications - $490
Be aware that the High Court’s requirements are strict. However, if you have time to spare, if you are used to paperwork, and if there are no complications, it is entirely possible.
You do need to provide a New Zealand address to the court, which may mean using a lawyer if you are overseas and do not have another New Zealand address.
You will still have to pay the High Court’s $200 fee, unless you are eligible for a fee waiver on grounds of nancial hardship.
Option 2 – do it yourself with documents prepared by Kiwilaw For just $490 (in most cases, and where there are no more than two executors), Kiwilaw will provide the documents, instructions, and relevant legal advice necessary for you to make a successful application for probate in your own name/s (as executor/s).
Sometimes additional evidence is needed, to explain some irregularity about the will or your loved one's death or domicile. That may add $100 to $500 (incl GST) to the total.
You also pay the High Court’s $200 fee, unless you are eligible for a fee waiver on grounds of nancial hardship.
Kiwilaw requires payment before providing the documents. If you pay these fees from your own resources rather than from estate funds, you are entitled to reimburse yourself once the estate’s funds are released to you as executor/s.
You provide a copy of the will and complete an online interview.
From that interview, Kiwilaw produces the documents. We courier everything to you after you pay our invoice. Included in the kit are the documents you need to get signed and sent to the High Court, plus detailed instructions for each individual document, a checklist, and a pre-addressed and prepaid courier bag.
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Kiwilaw's usual fee for probate applications - $490
If you do not already hold it, you uplift the original signed will from the lawyer who holds it.
Any complications are identi ed early on, before the documents are nalised.
However, if the court does raise any issues before granting probate, Kiwilaw will help to resolve them.
Option 3 – instruct your own lawyer to use Kiwilaw to prepare the documents You may prefer to use the lawyer who knew your loved one, who prepared their will, who still holds their will, and/or who will be advising about the estate administration as a whole.
Kiwilaw offers a ‘probate for lawyers’ service, which simpli es the document-preparation work and reduces the likelihood that the High Court will reject the application.
We developed this service after being approached by lawyers who needed help with probate.
About 30-40% of New Zealand probate applications are rejected when rst submitted, according to statements by the Probate Unit’s team leader (November 2019) and by Registrar John Earles (December 2019). Almost all probate applications are made by lawyers, which means that lawyers are making many unnecessary mistakes in the applications they are submitting.
Kiwilaw’s rejection rate is almost nil.
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Kiwilaw's usual fee for probate applications - $490
For just $390 (in most cases), Kiwlaw will provide the application documents to your lawyer, usually within 3 business days of receiving the information from your lawyer. The lawyer will be responsible for any client interviews and for providing the necessary information to Kiwilaw, and for paying Kiwilaw's invoice. The lawyer will also ensure the documents are collated and signed correctly; and the lawyer will submit the documents to the High Court.
As executor/s, you can instruct your lawyer to use Kiwilaw for this behind-the-scenes work.
This should streamline the process and make fees transparent.
The lawyer may also be willing to pay Kiwilaw’s fee and the High Court fee in the interim, rather than you having to pay it up front.
Option 4 – use your own lawyer, or Public Trust, or Perpetual Guardian, without Kiwilaw Most lawyers would charge between $1000-$1500 (plus GST) for probate applications – according to Kiwilaw’s research in December 2018-January 2019. Some would charge $2500 or more. A few would charge $4500 or even more.
A lawyer is required to disclose their billing rates before accepting instructions. If asked, they are also required to provide a written estimate in advance. It would be prudent to obtain a written estimate beforehand - speci cally for obtaining probate, as distinct from the rest of the estate administration.
To prepare a probate application for you, Public Trust charges at least $1020. It is not clear whether that includes the High Court fee. It does include GST. (For initial advice, meeting with the family, reading the will, and preparing an estate-administration plan, they charge at least $2176.) [Source: Public Trust estate administration price list, November 2022, available
online here (click on 'Estate administration').
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Kiwilaw's usual fee for probate applications - $490
To prepare a probate application in an estate with 2 executors, Perpetual Guardian would charge about $1200 (plus GST), plus the High Court fee, as of 2018. [Source: email from R
Broad, Perpetual Guardian, 21 May 2018.]
You can choose to pay these rates, in appropriate circumstances.
However, as executors, you do have an obligation to use estate funds prudently.
You may need to justify to bene ciaries why you chose this option instead of using Kiwilaw.
Public Trust and Perpetual Guardian also have a special statutory power to apply for probate and become the administrator of the estate, replacing the executor/s. This may be helpful in some situations. It will not cost less than using Kiwilaw, but it may avoid family friction or executor stress.
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Kiwilaw's usual fee for probate applications - $490
Cheryl with dogs - early 2022 - on the Eyre River riverbed at the West Oxford Reserve. Sadly the blue merle rough collie on the right (Sholto) was killed on the road in June 2022. The shock and grief were paralysing. It was like nothing Cheryl or her husband had previously experienced, even though both had lost their parents some years earlier. Sholto was so vibrant, and only 4 years young.
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Kiwilaw's usual fee for probate applications - $490
Less than $120,000? An 'election to administer'?
People are often told they need 'probate' to uplift a relatively small amount - such as Kiwisaver, or a small life insurance policy.
If the total value of your loved one's assets is less than $120,000, there is another option.
Public Trust can produce an 'election to administer' and send it to the High Court instead of applying for probate or letters of administration.
That makes the Public Trust the administrator of the estate. They then do the job of the executor/s.
The paperwork for an election to administer is simpler than for probate or letters of administration. The High Court ling fee is also cheaper ($40 instead of $200).
Similar powers are given to trustee corporations. 'Trustee corporations' are special organisations recognised by statute.
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Kiwilaw's usual fee for probate applications - $490
' These are the trustee corporations: Guardian Trust (t/a Perpetual Guardian) Trustees Executors Ltd Covenant Trustee Anchorage Trustee Services Oddly enough, at least at December 2022, none of these organisations had details about this on their websites.
When a trustee corporation gets an 'election to administer', it must certify to the High Court that the estate is worth less than $120,000.
If the estate turns out to be worth more than $150,000, the Public Trust (or trustee corporation) must notify the High Court. An application for probate may then be required.
Is an 'election to administer' cheaper than using Kiwilaw? No.
Public Trust and Perpetual Guardian appear to charge more to get an election to administer than Kiwilaw charges to prepare probate documents. (This is from limited, anecdotal information. Public Trust's online table of fees does not show what they charge for an election to administer.) Naturally, they also charge for the other work involved in administering the estate. Unless a special exception applies, Public Trust and trustee companies cannot charge more than 5% of the value of the estate.
From what other people have told us, Public Trust refuses to act if the estate is so small that the 5% limit means they cannot charge as much in fees as they would like. Perpetual Guardian is likely to have a similar policy. If correct, that means it will be more cost-effective to use Kiwilaw's probate service.
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Kiwilaw's usual fee for probate applications - $490
Maori Trustee / Te Tumu Paeroa - a special case If your loved one was Maori, the Maori Trustee can - in theory - take out an election to administer, but only for a smaller estate (estimated at less than $40,000).
Unlike the Public Trust or trustee corporations, there appears to be no statutory restriction limiting the Maori Trustee's fees to 5% of the value of the estate.
Like Public Trust and the trustee corporations, the Maori Trustee also has the statutory power to apply for letters of administration or probate, instead of such an application being made by the executor/s or people entitled to apply for letters of administration if there is no will or no executor.
BUT - and this is signi cant - the Maori Trustee no longer does any of this. We have recently con rmed this by making direct enquiries. Te Tumu Paeroa still has a few estates that are being administered, but no new estate instructions have been accepted for more than 20 years.
Although this may be good news for Kiwilaw - because we end up lling the gap - it raises questions as to why the Maori Trustee no longer does this work. The omission does not help Maori.
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Kiwilaw's usual fee for probate applications - $490(We
Start now!Use Kiwilaw's no-obligation online screening form to provide enough information for us to con rm our fee - use the URL (web address) below, or use your smartphone camera to scan the QR code (diagram) below which will go straight to the page. It will ask you to upload a copy of the will and any codicils - a photo or scanned copy. If you cannot do that immediately, you are asked to email it ASAP. https://kiwilaw.co.nz/probate/enquiry-and-screening-grant-ofadministration-in-new-zealand/
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Kiwilaw's usual fee for probate applications - $490
FAQ – Frequently Asked Questions How do I uplift the original will, if it is held by a law rm? Contact the rm. They will require written con rmation by all the executors before they release the original will. You can do this entirely yourself. If you prefer, you can use a Kiwilaw online service to prepare and download a Word document: your credit card is charged $46: click here.
If any executor has died, the law rm will require proof, such as that executor's death certi cate.
They will send the original will to you, or you can arrange to pick it up.
They will want you to sign something to acknowledge receipt.
When you rst get the original will, carefully check its physical condition - before you sign anything to acknowledge receipt. It should not have any staple holes (showing that it has been unstapled) or paper-clip indentations or anything else that could mean something else was attached to it. The High Court will require an explanation of any such holes or marks. If there are indeed any such issues, ask the law rm to con rm they will provide an af davit to explain what happened.
Do not unstaple the will. If it is not stapled, do not staple it.
Occasionally a law rm will insist on sending the original will to a law rm rather than direct to the executor/s. If necessary, Kiwilaw can help with that. We do charge an extra fee for our involvement.
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Kiwilaw's usual fee for probate applications - $490
Do I get the original will back, after it is sent to the High Court? No. It is kept on the High Court le. It will eventually be transferred to Archives New Zealand as part of the court le.
Can I use a certi ed copy of the original will, instead of sending the original will to the High Court? No. You can only use a certi ed copy if the original will has been lost or destroyed or if there is some truly exceptional reason why it cannot be produced. The paperwork becomes more complicated. The application process is therefore more expensive.
Can I keep the will secret? Not usually. The will, plus application and af davit, can all be made available to anyone who pays a small search fee.
In truly special circumstances, a High Court judge can make an order restricting access to the le or parts of it, including the will. For instance, sometimes an order is made to hide a speci c part of the will if a judge decides it is scandalous or defamatory.
If an executor's contact details need to be kept con dential because of serious safety issues (for instance, they have a protection order and their location must not be disclosed to the respondent), special arrangements can be made to cover this.
What happens if the will is not in English? If the will is in Maori, Kiwilaw's understanding is that the High Court itself will arrange and pay for translation into English, if the court needs such a translation.
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Kiwilaw's usual fee for probate applications - $490
If the will is in a foreign language, you will need to provide an English translation by a quali ed independent translator. Kiwilaw can arrange this. It does cost extra.
Does it make a di erence if my loved one had moved from New Zealand to Australia and made their permanent home there, signed their will in Australia, and died in Australia? Yes. If your loved one had no intention of moving back to New Zealand, it sounds as though their domicile was now Australia. You may need expert evidence (by af davit) to con rm that the will is valid under Australian law. Alternatively, you may be able to prove that New Zealand was your loved one's 'domicile of origin'. Kiwilaw can advise and help you with this. Naturally, we do charge extra for this sort of complication.
How long does it take for the High Court to issue probate, after the application is sent to the court? This varies, depending on their backlog.
In late 2019, it was 3 to 4 weeks. By late 2022, it was 8 to 10 weeks.
In 2023, who knows?!
If the court wants you to correct something or needs more information, it will take longer.
If I use Kiwilaw, how do you send the documents to me, for me to sign? In hard copy, by courier. We put them in a plastic folder with clear instructions for you. We use courier rather than email because we also enclose printed labels that must be attached to the will and any other exhibits. We also email you a scanned copy of what we courier to you.
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Kiwilaw's usual fee for probate applications - $490
Do I have to pay you if I change my mind before you send the documents to me? Yes. By the time we invoice you, we have already done almost all the work. The online interview includes a nal question for you to con rm that you want to go ahead. If you answer ‘yes’, you create the commitment to pay our invoice.
Are Kiwilaw’s documents as good as another lawyer’s, even though you have never met any of us? Yes. An application for probate is different from almost all other applications to the court. It usually has no discretionary wording and no room for advocacy or special legal expertise. Relevant facts are predictable and easily identi ed. The main challenge is ensuring that the application complies with excessively complex and arcane technical rules. That compliance is Kiwilaw’s focus and expertise.
Do you give a discount to SuperGold card holders? Not directly. Instead, a SuperGold card holder who uses Kiwilaw’s probate service can have a free copy of Kiwilaw’s Guide to Estate Administration – Where There’s a Will and a Grant of
Probate. That Guide normally costs $49.00.
Can I still use Kiwilaw if the will directs me to use the law rm that prepared the will? Yes. That wording is not legally binding. If your loved one had a long, close relationship with the rm, you may like to invite them to use Kiwilaw’s ‘probate for lawyers’ service, to maintain continuity. There is no obligation to do so. Your main obligation is to act in the best nancial interests of the estate.
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Kiwilaw's usual fee for probate applications - $490
Can I still use Kiwilaw if the executor named in the will is the Public Trust? Not if you want the Public Trust to stay as the executor.
You can use Kiwilaw if the Public Trust will agree to renounce the role of executor. Unless the will speci cally names a substituted executor (someone who becomes the executor if the Public Trust does not act), you will then apply for ‘letters of administration with will annexed’, rather than probate. The Public Trust may want to charge for providing a ‘deed of renunciation’.
Can I still use Kiwilaw if one of the executors named in the will is a solicitor? Only if that executor agrees to use Kiwilaw, or if they renounce the role of executor (see below - deed of renunciation). If they are the only executor, they can decide to use their own rm, unless all the bene ciaries direct them not to.
What is a ‘deed of renunciation’? A formal document which states that an executor named in the will is renouncing the role of executor. That means they are not going to apply for probate or administer the estate.
They cannot renounce their role if they have already started to administer the estate.
Once that document has been signed, that executor cannot change their mind unless the High Court agrees.
The deed of renunciation is sent to the court with the application by the remaining executor/s, or with an application for ‘letters of administration with will annexed’ if there are no other executors.
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Kiwilaw's usual fee for probate applications - $490
You can prepare a deed of renunciation online here, for $98.90 (charged to your credit card). It produces a Word document which you can download for the executor to sign.
What happens if a grant of probate has already been made for an earlier will for the same deceased? You can apply to recall the existing grant, and apply for probate of the later will.
If there is some doubt whether the later will is valid, the court will decide which will to approve, if any.
What happens if someone has lodged a caveat against the making of a grant of administration? You can still apply for probate. The wording is slightly different.
The court will process the application as usual. However, instead of issuing a standard grant of probate, the court will make an ‘order nisi for probate’ and give the caveator (the person who lodged the caveat) an opportunity and deadline to explain why probate should not be granted. A date will be set for a judge to meet with the executor/s and the caveator (or their lawyers), usually by phone, to decide what happens next.
Depending on what they put forward, a full hearing may be needed before probate can be granted. If so, additional court fees will have to be paid. A nal decision will be made by a judge instead of by a registrar.
If the judge decides there was no good reason for the caveat, the caveator may be ordered to pay something towards the additional legal costs and court fees incurred by the executor/s.
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Kiwilaw's usual fee for probate applications - $490
Sometimes a caveat is used as a tactic to get a copy of the will or other information. If the caveator gets that information and clearly has no good reason to say the will is not valid, the caveator should le a withdrawal of caveat.
What happens if an executor does not want to apply for probate and wants someone else to do it instead? If there is more than one executor, the unwilling one can sign a renunciation document. The other executor/s then apply for probate on their own.
If there is no other executor, the unwilling one can still sign a renunciation document. The main bene ciary under the will is normally the person who then applies for ‘letters of administration with will annexed’. Sometimes a creditor or someone else can apply. The applicant must be someone with a direct nancial interest in the estate, as creditor or bene ciary, unless there are truly special circumstances.
However, if the unwilling executor has already started to administer the estate, they cannot renounce their role.
Alternatively, if the executor is overseas, they can appoint someone in New Zealand as their 'attorney' to act on their behalf as executor. The attorney can then apply on behalf of the executor and sign all paperwork.
What happens if there are two executors, one of whom will not do anything? The willing executor can ask the unwilling executor to sign a deed of renunciation
(see above - 'What is a deed of renunciation?'.
If that fails, the willing executor can give written notice to the unwilling executor of their intention to apply for probate.
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Kiwilaw's usual fee for probate applications - $490
If the unwilling executor still does nothing, the willing executor can apply for probate and explain to the court what has happened. The court will then give the unwilling executor an opportunity to explain themselves.
After that, the court can grant probate to the willing executor.
What happens if the only will we can nd was made before my loved one got married? That will is probably invalid - unless it speci es that it was made in contemplation of your loved one's marriage to the same person they did actually marry.
However, even if the will does not expressly say this, it can still be valid if you can satisfy the court from other evidence that your loved one made the will in contemplation of that marriage.
You should make enquiries to check whether there is a later will.
How do I check whether there is a later will than the one we have found? Ask your loved one's family, friends, lawyer, accountant, banker, and other professional advisers.
Ask Public Trust - they have a statutory obligation to hold someone's original will in safe keeping if asked (even if they did not prepare the will and are not named as the executor).
Arrange for a will notice to be published by the New Zealand Law Society to all lawyers and on the NZLS website: https://www.lawsociety.org.nz/news/publications/advertise-with-thenew-zealand-law-society-te-kahui-ture-o-aotearoa/will-notices/
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Kiwilaw's usual fee for probate applications - $490
What happens if the High Court registrar refuses to grant probate? You can apply for a review by a High Court judge, of the registrar’s decision. The registrar’s letter will tell you more about this. There is no extra court fee.
Why are your fees so low, compared with everyone else? Most of the time, when there is a valid will and executors available in New Zealand, the paperwork for probate is truly straight forward. Unless there are complications, the question should be why everyone else charges so much.
It's more satisfying to use technology effectively to provide an ef cient service that meets a genuine need, than to make it harder for people just so that Cheryl can make more money.
Low overheads - Cheryl works from home, as do her assistants, at least at present.
It's too hard to change all the marketing to re ect a higher fee for probate documents. In contrast, Kiwilaw's fees for preparing documents for letters of administration have indeed increased in the last year or so. Cheryl wants to keep Kiwilaw's probate fee at $490 for as long as possible.
Cheryl enjoys using no-code automation tools. Automio, Zapier, ProcessStreet, Xero, WPForms, and even Word - they are sometimes infuriating but, for someone who knows almost no HTML (let alone anything more complicated), they have transformed legal practice into a delight.
Maybe the fees do need to increase - does $490 seem 'too good to be true'? We'll think about it....
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Kiwilaw's usual fee for probate applications - $490
Kiwilaw sample fees - probate applications Standard f ee - 1 or 2 applicants
490
Additional applicant
100
Overseas applicant, provides alternative NZ address
100
Overseas applicant - uses Kiwilaw as address for service
200
Original will has holes or marks requiring explanation by applicant
100-200
Original will has holes or marks requiring explanation by somebody else
300-500
Codicil/s
200-300
Joint will (multiple will-makers)
200
Multiple identical original wills (same will-maker)
200
Affidavit by witness - for instance, if will does not have the required attestation clause or the date is unclear
300-500
Evidence about deceased's NZ domicile if died overseas
200-300
Evidence about deceased's overseas domicile
200-300
Af f idavit of overseas lawyer to prove validity of f oreign will under f oreign law - liaison (PLUS f ee charged by f oreign lawyer)
200
Lost will
500-800
Foreign-language will OR non-English-speaking applicant liaison with translation service (PLUS f ee charged by translation service)
200
Subsequent invalid will-type document - disclosure and any notices required
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100-300
Kiwilaw's usual fee for probate applications - $490
Links - by QR code The booklet contains several links to webpages, either Kiwilaw's or someone else's.
However, if you have printed a hard copy, those links may be daunting.
Instead, on this page, you can connect using a smartphone or other device, by using your device's camera to scan the relevant QR code below.
(If your phone camera does not automatically scan QR codes, you may need to download and install a QR reader from your App Store. It is not as terrifying as it sounds. Ask a youngster, librarian, or computer geek for help.
Kiwilaw website - re probate applications
https://kiwilaw.co.nz/probate
Kiwilaw client-care information
https://kiwilaw.co.nz/client-care-information-probate-service-otheronline-documents/
Kiwilaw's Guide to Estate Administration... purchase for AUD45.00 (platform does not offer NZD) https://issuu.com/cherylsimes/docs/22.01.25_guide_v_1-3
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Kiwilaw's usual fee for probate applications - $490
Kiwilaw online resources, including deed of renunciation, letter to uplift original will from law firm, and caveat against a grant of administration https://kiwilaw.co.nz/helpful-resources /
Public Trust fees and charges (Nov 2022) - for comparison
https://www.publictrust.co.nz/resources/fees-and-charges /
Book a will notice for publication by NZ Law Society - give your own contact details (not Kiwilaw) https://www.lawsociety.org.nz/news/publications/advertise-withthe-new-zealand-law-society-te-kahui-ture-o-aotearoa/will-notices/
Kiwilaw (free) 1-page outline of estate-administration steps
https://kiwilaw.co.nz/2021/07/02/estates-steps/
Kiwilaw - direct link to online screening form for noobligation confirmation of Kiwilaw's fee - needs a copy of the will (if any) https://kiwilaw.co.nz/probate/enquiry-and-screening-grant-ofadministration-in-new-zealand/
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Just because a lawyer holds the will, it doesn't mean they hold the purse strings. Check their fee, before you agree.