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Probate FAQS
After someone dies, there are usually many financial and legal tasks that need to be done. Managing someone else’s affairs is never easy, but probate is something you do need to prioritise.
Weston Ward & Lascelles provide legal services in Christchurch. We assist clients in creating tax-efficient ways to protect assets after death and guide families through the probate process.
The process of probate is important. It's a way to protect the deceased person's belongings and make sure their wishes are followed. That's why there are legal steps you need to take before you can access and divide their estate.
What is probate?
Probate is permission from the High Court for the Executor to carry out the instructions of the Will. Executors in a Will find out what money, assets, and possessions the deceased had. They give these things to the beneficiaries after paying taxes and debts.
What duties does an Executor have?
Executors play a critical role in managing the deceased’s estate. Aside from the administration and distribution of the finances and assets, the Executor has other important responsibilities. These include:
- The funeral arrangements
- Validating the Will
- Representing the estate and being personally liable if there are legal proceedings or a claim on the estate
- Managing and maintaining the deceased’s property and assets
Being an Executor can be a demanding unpaid role. Extra responsibilities can be difficult. They can also be time-consuming and emotionally challenging. This is especially true when dealing with the wishes of the deceased's family and others who will benefit.
It’s important to note, you are not legally obligated to fulfil the Executor role. If you do not want to be an Executor, you may renounce your appointment. However, if you are the sole executor and there is no provision in the Will stating that “you are unable or unwilling to act” you will not be able to renounce.
Typically Wills have an alternative Executor listed, and they will be contacted to apply for Probate. If no alternative Executor is chosen, there is a specific order for people who can apply for a Letter of Administration.
Does every estate have to go through probate?
No, the probate trigger estate value is $15,000. However, there is some wriggle room: estates holding less than $15,000 in shares or in one financial institution are not required to go through probate.
Mr X's car is worth $7,000. He also has $3,000 in a Freedom account and $12,000 in a savings account. You can see how Mr. X’s estate will not need probate. However if the deceased owned a house property it is always necessary to apply for Probate.
If you are unsure whether the estate needs to go through probate, it’s crucial to seek probate legal advice. Failing to work within the law carries serious consequences.
How do you get the Grant of Probate?
Only the Executor can apply to the High Court for the Grant of Probate unless there is no Will (see below). The Executor completes a form for the court. The form includes the deceased person's most recent Will. The Executor also includes a written statement to confirm the Will.
1. Their identity
2. How did they know they were the Executor and/or did they know the deceased
3. To the best of their knowledge the Will is the latest version
4. They will carry out the instructions of the Will
Once the Court Register has verified the Will and supporting documents, the Grant of Probate will be made.
Do you have to use a Probate Lawyer or can you do it yourself?
No, you do not have to instruct a Lawyer for the Grant of Probate. The application forms are accessible on the government website. However, the website recommends seeking legal services to:
- Clarify key areas of information such as contesting a Will, distributing an estate, or proving the validity of a Will.
- Fill out the forms to present the circumstances to comply with legislation.
Estate administration and probate application is a labour-intensive process involving tax calculations, legal terminology and regulations and extensive paperwork. Executors are legally responsible for any errors or mistakes, even if they were not intentional.
If the estate is simple, getting the Grant of Probate can be easy. But in some cases, it's better to seek legal advice.
- The terms of the Will are not clear
- Some of the beneficiaries are under 18
- Some of the estates is held in a trust
- The estate includes land or property overseas
- The deceased owned a business
- The Will may be disputed
Doing probate yourself may appear cost-effective, but errors can lead to higher expenses compared to seeking professional advice initially. The price you pay for probate legal advice is for peace of mind.
What does the Grant of Probate allow you to do?
The Grant of Probate is proof the Executor has the right to deal with the deceased’s assets. This includes:
- Close bank accounts
- Sell shares
- Withdraw investments
- Transfer ownership of land
- Make a claim for any life insurance policies
- Recover monies owed to the deceased
- Pay debts the deceased owed
When can the assets be released?
The Executor holds onto the assets for a minimum of six months. This allows for any potential claims against the estate to be made within that time. After this period, the Executor can distribute the assets within one year.
What happens to probate if someone contests the Will?
If someone makes a claim after the estate is distributed, they must make the claim against the recipients of the assets. The claim cannot be made against anyone else.
If someone makes a claim after the estate has been distributed, the claimant will need to make a claim directly against the person or people who received the assets (known as following the assets).
A common misconception people have is that the legal cost of challenging a Will is paid for by the estate. The general rule for legal services fees is if you succeed with your case, your costs are paid by your opponent. However, the award of costs is subject to the discretion of the Court, especially in family law dispute matters.
It’s crucial all communication between the parties (Executor and beneficiaries) and the contester remain calm, cordial, and non-confrontational. Strong emotions can be harmful and influence the Judge's decision on who should cover the expenses. If tensions rise, it's smart to hire a lawyer as Executor to lessen the impact on people and maintain some order.
How do I challenge a Will?
If you believe the deceased’s Will was not made properly, or forged or they could have been pressured into making it, the Will may be deemed not valid, and you may be able to contest it.
Alternatively, if the Will is valid but you feel you have been treated unfairly or not provided for adequately, you may be able to claim.
First, consult a Will dispute lawyer to ensure you have valid reasons for applying. Challenging a Will can be long and stressful. Get legal advice early to know your rights, meet deadlines, and increase your chances of winning.
What happens if there is no Will?
If someone you love dies without a Will, it's called dying intestate. You'll need to apply for Letters of Administration on Intestacy. The court chooses an administrator to be the executor and divide the estate's assets. This person is typically a close relative who is still alive.
It's a good idea to get legal help for family problems. A probate lawyer can protect you and guide you through the legal steps. This should also be a timely reminder to write or update your own Will.
Contact us today for any questions or to learn more about probate, Wills, family trusts, and estate planning.
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