(Article Supplied by Jo Savage, Estates Manager of Holland Beckett)
Probate is the "authority" given by the High Court to confirm that the will of a deceased person has been proved and the executors named in will have the authority to carry out the terms of the will.
When a person dies, any Power of Attorney held on behalf of the deceased person then ceases to exist and the executors named in the deceased's will now take over all responsibilities.
An executor (or executors) is the person (or persons) appointed by the deceased person in their will or codicil, to administer the deceased's estate and to carry into effect the provisions of the will.
The application for Probate must be accompanied by the original will (not a copy) and sworn affidavits by the executors of the estate which contain evidence of the death of the deceased and states the executors' belief that the will accompanying the affidavit is the deceased's last will and testament.
The application is filed in the Wellington High Court (for the whole country) and usually takes 4 - 6 weeks to issue. An application for Probate is required when a deceased person holds assets to the value of $15,000.00 or more in their sole name as well as when the estate includes ownership of land or an interest as "tenants in common" regardless of the value of the property. In addition to this there may be situations where executors will voluntarily opt to apply for Probate. "Joint assets" will pass by survivorship irrespective of the provisions of the will.
Once Probate of the will has been granted by the High Court, the executors are then in a position to deal with the assets and administer the estate. Once Probate has been granted this will trigger various time frames undert the Administration Act as follows:
The executors of an estate may have a personal liability if a distribution or transfer of assets is made within six months of the date of Probate being granted in the event a Notice of Claim or potential Family Protection Act, Property (Relationships) Act or Testamentary Promises Act claim is made within the time frame below.
A potential Claimant has 12 months after the grant of Probate to make a claim (unless leave of the Court is obtained after that time). The Claimant must obtain their own legal advice independent from the Solicitors acting for the estate.