What if there's no Will?

In New Zealand, most estates of any size are administered under the terms of the person’s Will.

Sometimes, however, the deceased hasn’t made a Will. In that case the person is said to have died intestate, and the law steps in to say who is entitled to share the estate. These rules also apply where the deceased attempted to make a Will but it wasn’t completed correctly – unless the High Court is willing to validate the Will under the Wills Act 2007.

Who gets what?

Section 77 of the Administration Act 1969 sets out who is entitled to benefit if a person dies without a valid Will. If there is a Will, but it only deals with part of the estate, then s77 will apply to the part of the estate not covered by the Will. The various situations are covered in the table below.

If there is a …

Spouse or partner¹ but no parents, children or other descendants.

They will receive...

Spouse or partner receives the whole estate

Spouse or partner and children or other descendants

They will receive…

Spouse or partner will receive the personal chattels² plus $155,000³ (with interest) and one third of anything that is left.

The children receive the remaining two thirds. If any of them have died, their children receive their share and so on for each generation.

Spouse or partner and parents but no children or other descendants

They will receive...

The spouse or partner is entitled to the personal chattels plus $155,000 (with interest) and two thirds of anything that is left.
The parents receive the remaining third.

Children or other descendants but no spouse or partner

They will receive...

The children receive the whole estate equally and if any of them have died, their children receive their share and so on for each generation.

No spouse or partner and no children or descendants but a parent or parents survive

They will receive...

The whole estate is divided between the parents or if only one is alive that parent will receive the whole estate.

No spouse or partner, no surviving parents, no children or other descendants but one or more brothers or sisters

They will receive...

The whole estate is divided among the brothers and sisters and if any of them have died their children receive their share and so on for each generation.

None of the above surviving but one or more grandparents or uncles/aunts survive

They will receive...

Half the estate for mother’s family i.e. her parents or if they have died then all of the deceased’s uncles and aunts on the mother’s side.
Half the estate for the father’s side of the family i.e. his parents or if they have both died then the deceased’s uncles and aunts on the father’s side.
Again, if any uncle or aunt has died his or her children receive that share and so on through each generation.

None of the above

They will receive...

Everything passes to the State. Dependents and anyone who might reasonably expect to have benefited may apply to the New Zealand
Treasury which may pay out some of the estate to them.

¹ The spouse or partner who may benefit would include a civil union partner and any de facto partner or same sex partner. If there’s more than one spouse or partner, they must share this entitlement equally.

² Personal chattels are defined to include almost anything that can be moved, for example vehicles, boats, aircraft, horses and equipment for them, as well as furniture and personal items such as clothing and jewellery.

³ The figure of $155,000 is current at the time of writing. It has increased steadily over the years and is likely to be increased with inflation in future. Interest is payable on this amount from the date of death until the date when it’s actually paid out. The rate of interest is updated from time to time.

What the family should think about

If it’s likely that there is no Will, the family need to think about several possibilities:

  • Is it possible to deal with the estate without letters of administration from the High Court? There’s more on this in the section on ‘Small estates’ on Page 29.
  • If formal administration documents are required, who should apply to be appointed administrator/s?
  • Get a form of consent signed by the other beneficiaries, that is, the people listed in the table above.
  • Collect together all the birth, death and marriage certificates and other family history documents so that you can work out who is entitled to the estate.
  • Check with any lawyers who might hold a Will or who might have information relating to the estate or the family.
  • Don’t throw out ANY documents until you’re sure the estate lawyer won’t need them.

If there are no close relatives and the estate is likely to be distributed among a wide number of family members, there may be a problem locating some of these people or even knowing if they are still alive. In some cases the administrators may need to reach agreement with the known beneficiaries to make a distribution with a promise that if anyone else ever turns up the beneficiaries will pay back what’s necessary to give these people their share. This is usually referred to as an indemnity.

Letters of Administration

As well as working out who will be entitled to benefit from an intestate estate, a decision also needs to be made about who will administer the estate.

The High Court must approve the appointment of administrators and give them a document called Letters of Administration on Intestacy. There is an order of priority for who may apply for these Letters of Administration. Basically this is the person or people who will receive most of the estate under the table on the previous pages. However, other people can be appointed administrators with the consent of the beneficiaries.

You or the estate lawyer will need to obtain specific information to enable an Application for Letters of Administration to be completed. This includes:

  • Establishing that there’s definitely no Will in existence including:
    • Writing to any previous lawyers and banks the deceased was associated with
    • Writing to the major trust companies: Public Trust, NZ Guardian Trust, Trustees Executors and Perpetual Trust
    • Advertising in a New Zealand Law Society newsletter
    • Asking the family to search all papers and files of the deceased.
  • Finding out if there is a spouse, civil union and/or de facto partner, whether there was a divorce or separation order in existence at the time of death and, if so, obtain a copy of that divorce or separation order. If a surviving spouse, de facto partner or civil union partner applies for Letters of Administration, then consideration will need to be given to election under the Property (Relationships) Act 1976 (see the Claims against an estate).
  • Obtaining full details of all children of the deceased (including a child who pre-deceased the deceased and who may have left any children). It’s also necessary to go through all papers left behind by the deceased to search for reference to any other children, and to check with any lawyer who was known to act for the deceased.

  • Instigating a search of the Births, Deaths and Marriages Register to verify whether there are any other children of the deceased. A certificate needs to be obtained: there’s a fee for this.

  • Ascertaining full details of the assets and liabilities of the estate.

After you or the estate’s lawyer has established whether Letters of Administration are required, and who is to apply for them, then the application documentation will be almost complete.

There will also need to be an affidavit by the person applying for administration. This affidavit will include the information established above, together with other information as required by the High Court Rules.

The documents are then filed in the High Court. Once the High Court approves the Grant of Administration, a sealed order is released by the High Court. This can take up to six weeks. Once the order is granted, the Administrator can then proceed with administering the estate.

If there’s no executor but there is a Will

Where there’s no executor, the court will appoint an administrator to carry out the requirements of the Will. This is called ‘Letters of Administration with Will Annexed’.

This procedure is used where a person dies leaving a valid Will but the Will doesn’t name an executor, or the executor has died or, for whatever reason, can’t or won’t apply for probate.

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