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Estate Administration

This publication guides practitioners acting for executors and administrators in estate matters.

2 Matter Plans

Overview

The publication comprises 2 guides to assist practitioners in obtaining a grant of probate or letters of administration. The commentaries cover obtaining the grant, collecting the assets, and distributing the estate in accordance with the will or the rules of intestacy.

The Reference materials folder provides guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • Letters to the executor or administrator and beneficiaries at various stages;
  • Libraries of letters to asset holders – initial and final;
  • Letters and forms for executor or administrator commission;
  • Deeds of release and indemnity;
  • Deeds of family arrangement;
  • Statement of assets, liabilities, and distribution;
  • Letter to beneficiaries with distribution;
  • Final letters to executor or administrator – concise and extensive.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Probate
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Electronic Signing and Witnessing
    • Item icon Further information
      Other trusted and useful resources

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  • Item icon Overview
    Administration of deceased estates is governed by the Administration Act 1969. A grant of probate gives the person appointed executor by a will the authority to deal with the estate’s assets and liabilities in accordance with the provisions of the will: s 24.

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Probate
    • Item icon To do list - Probate
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Estate administration
    • Item icon Conflict of interest check
    • Item icon Initial letter to executor
    • Item icon Initial letter to executor with duties when small estate and we are not acting
    • Item icon Enclosure - Estates checklist
    • Item icon Client Care and Terms of Engagement
    • Item icon Scope of work - Estate administration
    • Folder icon If required - Uplift documents from previous lawyer
      • Item icon Letter to lawyer with authority
      • Item icon Authority to obtain will
      • Item icon Authority to obtain documents
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs estimate
    • Folder icon General deeds, agreements, execution clauses and statutory declaration
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Confidentiality deed
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
      • Folder icon Library of clauses for deeds and agreements
        • Item icon Amendment clause
        • Item icon Confidentiality clause for defined information - All parties
        • Item icon Confidentiality clause for defined information - One party
        • Item icon Confidentiality clause for terms of agreement - All parties
        • Item icon Confidentiality clause for terms of agreement - One party
        • Item icon Costs clause
        • Item icon Counterparts clause
        • Item icon Dispute resolution clause
        • Item icon Events beyond control clause
        • Item icon Governing law and jurisdiction clause
        • Item icon Interpretation clause
        • Item icon No assignment clause
        • Item icon Notices clause
        • Item icon Severance clause
        • Item icon Waiver clause
        • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
        • Item icon Standard annexure note for documents
  • Folder icon B. Preliminary considerations
    • Item icon Funerals
      The Administration Act 1969 allows funeral expenses to be paid from a deceased estate before a grant is made. Most banks will allow funeral expenses to be paid from the deceased’s account before a grant is made.

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    • Item icon Executors
      A will must appoint both an executor and a trustee. They are usually the same person but not necessarily. The executor administers the estate. Following administration, the trustee holds the part of the estate that is subject to ongoing trusts, if any.

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    • Folder icon If required - Renunciation
      • Item icon Renunciation
        A named executor who does not want to act must not intermeddle and must sign a renunciation. Provided the person has not intermeddled, they can refuse the appointment for any reason. Renunciation ends the person’s right to be appointed by the court but does not change their entitlement under the ...

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      • Item icon Letter to executor who is renouncing
      • Item icon Renunciation
    • Folder icon Beneficiaries
      • Item icon Beneficiaries
        A beneficiary is a person or entity who receives a benefit under a will. An executor holds the estate for the beneficiaries and has a fiduciary duty to the beneficiaries. The executor must be even handed in their dealings with the estate and beneficiaries, even when the executor is one of the ...

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      • Item icon Right to a copy of a will
        The executor has the right to deal with the will and can provide a copy to the beneficiaries. A probated will is in the public record. Anyone wishing to see a probated will may obtain a copy of the grant by applying for a search with the High Court.

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      • Item icon Initial letter to beneficiaries regarding probate application
      • Item icon Initial letter to beneficiaries regarding application for probate by remaining executor
    • Folder icon If required - Caveats
      • Item icon Caveats
        The court should be notified of a proposed challenge to the terms of a will before probate is granted. Notice is given by lodging a caveat with the court to prevent the grant, ensuring the caveator is notified of any application for probate and given an opportunity to approach the court before ...

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      • Item icon Letter to caveator's lawyer seeking details
      • Item icon Letter to client enclosing an expected caveat
      • Item icon Letter to client enclosing an unexpected caveat
      • Item icon Caveat
      • Item icon Memorandum to be attached to first document filed by party
    • Item icon Challenging the validity of a will
      Family members, dependents, and beneficiaries named or unnamed in a will may distrust the will’s validity and allege it should not stand as the testator’s last will. Family members may suspect the testator lacked capacity to make the will due to mental illness, or that the will was executed under ...

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    • Item icon Simultaneous deaths
      When two or more people die at the same time, or when it is not clear who died first:

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  • Folder icon C. Gathering information
    • Folder icon If required - Lost will
      • Item icon Letter looking for missing will
      • Item icon Advertise for a will – New Zealand Law Society
    • Folder icon If required - Accidental death
      • Item icon Support schemes
        Some funeral costs related to death caused by an accident or a criminal act are covered by the Accident Compensation Corporation. Family members may be eligible for ongoing assistance. Manaaki Tangata | Victim Support may provide family support if the deceased was a victim of crime.

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      • Item icon Letter to Accident Compensation Corporation regarding claim for accidental death
      • Item icon Financial support if someone has died from an injury – ACC
    • Folder icon Library of initial letters and notifications
      • Item icon Register a senior’s death – Ministry of Social Development
      • Item icon myTrove
      • Item icon Licence holder has passed away – NZ Transport Agency
      • Item icon Letter to Births, Deaths and Marriages requesting form to notify death
    • Folder icon Library of initial letters to asset holders
      • Item icon Initial letter to bank
      • Item icon Initial letter to private health insurer
      • Item icon Initial letter to cancel membership
      • Item icon Initial letter to deceased's accountant
      • Item icon Initial letter to deceased's employer
      • Item icon Initial letter to KiwiSaver provider
      • Item icon Initial letter to financial advisor or stockbroker
      • Item icon Initial letter to company regarding shares and debentures
      • Item icon Initial letter to life insurer
      • Item icon Initial letter to mortgagee
      • Item icon Initial letter to a creditor of the estate
    • Item icon Requirement for a grant
      The requirement to obtain a grant depends on the will and assets of the estate.

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  • Folder icon D. Applying for probate
    • Item icon Completing the application
      The following forms and documents are required in an application for probate:

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    • Item icon Application without notice for obtaining grant of probate/letters of administration with the will annexed/letters of administration on intestacy
    • Item icon Affidavit for obtaining grant of probate
    • Item icon Probate in common form
    • Item icon Affidavit of valid execution
    • Item icon Standard annexure note for documents
    • Item icon Exhibit note
    • Item icon File and Pay – Courts of New Zealand
    • Folder icon If required - Notice and consent
      • Item icon Letter to renouncing executor enclosing notice and consent
      • Item icon Notice of application
      • Item icon Consent
      • Item icon Affidavit of service
      • Item icon Exhibit note
    • Folder icon Library of less common affidavits
      • Item icon General Affidavit Form
      • Item icon Clause - Affidavit of due execution - Translator
      • Item icon Clause - Affidavit of plight - Person with knowledge - Condition and finding of the will
      • Item icon Clause - Affidavit of plight - Executor - Condition and finding of the will
      • Item icon Clause - Affidavit of plight - Law firm employee - Condition and finding of the will
    • Item icon Letter to court enclosing probate application
    • Item icon Minutes for further information
      If the court requires further information or identifies a technical or evidential issue regarding an application for probate, then the registry will issue a minute setting out the issue and how the applicant can rectify the application. A minute that raises an evidentiary issue usually requires a ...

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    • Item icon Letter to executor or administrator for distribution after grant after six months
    • Item icon Letter to executor or administrator for distribution after grant before six months
  • Folder icon E. If required - Reseal
    • Item icon Reseal
      A grant of probate made outside New Zealand has no effect unless it is resealed by the High Court in New Zealand. An executor named in the grant, or a person authorised by an executor under a power of attorney, may apply for a reseal.

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    • Item icon General Affidavit Form
    • Item icon Clause - Affidavit of applicant for resealing
    • Item icon Clause - Reseal order
    • Item icon Exemplification of probate or letters of administration
    • Item icon File and Pay – Courts of New Zealand
  • Folder icon F. If required - Commission
    • Item icon Commission
      An executor may claim a commission for administering a deceased estate if provision for commission is made in the will. A trustee may claim a commission for administering a trust if the court is satisfied it is just and reasonable. See s 139 of the Trusts Act 2019 and r 27.37 of the High ...

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    • Item icon Letter to client about a claim for commission
    • Item icon Letter to beneficiary about a claim for commission
    • Item icon Interlocutory application on notice
    • Item icon Clause - Application for commission
    • Item icon Interlocutory order
    • Item icon Clause - Order for commission
    • Item icon General Affidavit Form
    • Item icon Clause - Supporting application for commission
  • Folder icon G. Dealing with assets and finalising accounts
    • Item icon Realising assets
      Once probate has been granted, the executor must:

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    • Item icon Statement of assets, liabilities and distribution
    • Item icon General collection letter
    • Item icon General reminder letter
    • Item icon Letter to care home requesting payment
    • Folder icon Deeds of family arrangement
      • Item icon Deeds of family arrangement
        A deed of family arrangement can vary a will or the statutory intestacy entitlements either to settle a dispute or change the distribution of a deceased estate’s assets with the consent of all interested parties. This type of deed usually is prepared by the estate’s lawyer, with costs paid from the ...

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      • Item icon Deed of family arrangement - Life tenant and residual beneficiaries
      • Item icon Deed of family arrangement
    • Folder icon Bank
      • Item icon Letter to lender for release of funds
    • Folder icon Real property
      • Item icon Transfers of real property
        On the death of a joint tenant, transmission of the property to the survivor must be registered in accordance with s 87 of the Land Transfer Act 2017. An application for Land registration can be made online from the Transmission instruments webpage and is lodged with a statutory declaration ...

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      • Item icon Letter to lender for mortgaged property
      • Item icon Transmission instruments – Land Information New Zealand
      • Item icon Landonline – Land Information New Zealand
      • Item icon Application for transmission (personal representatives)
      • Item icon Application for transmission (survivorship)
    • Folder icon Insurance and KiwiSaver
      • Item icon Letter to life insurer for release of funds
      • Item icon Letter to health insurer to cancel and refund
      • Item icon Letter to KiwiSaver provider for release of funds
      • Item icon Letter to property insurer to cancel and refund
    • Folder icon Shares
      • Item icon Letter to company regarding debentures transferred or repaid
      • Item icon Letter to company regarding shares transferred or sold
      • Item icon Transfer of shares
    • Folder icon If required - Gifts to charities
      • Item icon Letter to a charitible institution beneficiary about residuary legacy
      • Item icon Letter to a charitible institution beneficiary about a pecuniary legacy
      • Item icon Letter to a charitible institution beneficiary about a specific legacy
    • Item icon Tax considerations
      Executors and trustees must consider taxation obligations related to estate income and distributions.

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    • Item icon Letter to executor or administrator advising asset sold
    • Item icon Letter to executor or administrator advising debts paid
  • Folder icon H. Distribution
    • Item icon Distribution
      An executor making distributions will want to avoid being held personally liable for claims against the estate. An administrator who makes any payment, assumes any liability, or takes any action in good faith has the same indemnity and protection whether or not the administration is valid or ...

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    • Folder icon If required - Interim distribution
      • Item icon Interim distributions
        Depending on the estate’s circumstances, an interim distribution of part of the beneficiaries’ entitlement may be appropriate. An executor should only make an interim distribution with an indemnity and based on a certainty that the estate will have sufficient funds to cover all liabilities and the ...

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      • Item icon Letter to beneficiary on interim distribution
    • Item icon Letter to executor or administrator about distribution prior to six months
    • Item icon Letter to beneficiary about distribution prior to six months
    • Item icon Letter to executor or administrator about distribution after six months
    • Item icon Letter to beneficiary about distribution after six months
    • Item icon Statement of assets, liabilities and distribution
    • Folder icon If required - Deeds of release and indemnity
      • Item icon Deed of release and indemnity - With notice of claims
      • Item icon Deed of release and indemnity - Without notice of claims
      • Item icon Deed of release and indemnity - No grant
    • Item icon Beneficiaries’ responsibilities for specific gifts
      Liabilities related to a gifted property and its upkeep are payable by the beneficiary. Unless otherwise expressed in the will, the beneficiary is responsible for the cost of transferring the property to them and takes the gift subject to any mortgage.

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    • Item icon Letter to beneficiary enclosing specific bequest
    • Item icon Residual estate
      The residual estate is what remains, that is, the residue after all debts and expenses have been paid and all specific bequests and legacies distributed. Specific bequests or legacies that fail usually fall into the residue.

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    • Item icon Letter to beneficiary with distribution of residue
    • Item icon Keeping proper accounts
      Executors are obligated to keep proper accounts to ensure clear and accurate information is provided to the beneficiaries. What is proper depends on the nature of the estate. An executor’s minimum accounting obligations include:

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  • Folder icon I. Finalising the matter
    • Item icon Finalising the matter
      Following the estate’s distribution, a final letter to the executor reporting on the matter and enclosing their documents should be sent to finalise the matter. If the firm is not acting on the administration after the grant, the documents and a letter reporting can be sent to the executor with the ...

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    • Item icon Final letter to executor or administrator - Concise
    • Item icon Final letter to executor or administrator - Extensive
    • Item icon Example invoice
    • Item icon Invoice recital - Estate administration
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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