When someone dies, the responsibility usually falls to their nearest and dearest to deal with the details that arise from that death. This may be a straightforward exercise for lawyers who regularly deal with estates, but it’s more difficult for family or trusted friends who often don’t know where to start. This article
suggests some practical points to guide you if you find yourself in this position.
Check for written instructions about their funeral: Many people will write down how they want (or don’t want) their funeral to be conducted. They may also say how they would like their body to be dealt with. They may ask for particular people to be notified. Even if you think you already know their wishes, do check their personal papers, in their home and also with their lawyer, in case something has been written down.
Celebrate their life: Don’t concern yourself with legal issues too quickly . . . your priority should be to make appropriate funeral arrangements. The funeral director will attend to any formal notification requirements, and the legalities can be dealt with once the funeral is behind you.
Locate their last Will: The original Will is usually held by their lawyer. If you find a copy among their papers at home, this usually has on it the name of the law firm that prepared the Will, and they will normally hold the original. The Will appoints one or more executors, and it is important to establish early on who they are.
Identify and protect estate assets: The executor/s should find out what assets are owned at the date of death, and should take steps to protect those assets. For example, a vacant home or unattended
vehicles may need to be secured or stored. Make sure adequate insurance is in place. You may need to agree with an insurer about what must be done to maintain insurance on an unoccupied property.
Find out what legal steps need to be taken, and by whom: The High Court issues probate to the executor/s as authority to administer the estate. However, it’s not always needed. Once the lawyer knows what assets are involved in the estate, he/she can tell you whether it will be necessary to apply for a grant of probate. If assets are held in joint names, on behalf of a trust or have a low value, probate may not be needed.
There’s no rush: In cases of urgent need there are ways to obtain access to some funds of the estate. Funeral directors are normally willing to wait a reasonable time for payment of their account from funds that will be released after probate is granted. Alternatively one of the family may be happy to pay the funeral account personally and be reimbursed by the estate.
The High Court now deals with a probate application quite quickly, and you can expect to have this issued within four to six weeks of making the application. It’s a good idea to let Work and Income
NZ (WINZ), or any other pension payer, know of the death. This will enable them to stop payments that will otherwise need to be refunded; if it’s necessary to repay some superannuation payments
the funds should be available in the bank account to which they were paid.
What if you can’t find a Will? The deceased’s lawyer can advertise to try and find the Will. If no Will is found, an application will be made to the High Court for an Administrator to be appointed. Letters of Administration grant powers similar to probate. The estate is distributed according to the Administration Act 1969 which generally follows bloodlines.
A named executor can refuse: An executor appointed under a Will can renounce that appointment. A suitable replacement can be appointed with the consent of the High Court. Before going down this path, however, check how you might be able to work with the deceased’s lawyer to see whether there’s an efficient and practical way of receiving advice and dealing with the estate.
Our law provides sensible and orderly procedures for dealing with a death. These encourage a responsible and accountable approach which is transparent to all affected parties. There is plenty of time for people to be heard if they feel they haven’t been appropriately treated in the Will.
The estate’s lawyer will ensure that the distributions from the estate are not disbursed too soon, as it takes a few months to organise even the tidiest estate. Don’t be persuaded by beneficiaries who wish to short cut due process in order to obtain their legacies. Follow the legal steps and administration of an estate should not be difficult.
