What is Probate?

What probate is

Probate is the court order that confirms two things: that the will is valid, and that the executor named in it has the authority to deal with the estate. In New Zealand, probate is granted by the High Court. It is the executor’s legal “permission slip” to collect the deceased’s assets, pay their debts, and distribute what remains.

Why probate is needed

Banks, companies, share registries and land-ownership systems will not simply hand over a deceased person’s assets to anyone who asks. They need proof that the person dealing with the estate is authorised to do so. A grant of probate provides that proof. Without it, many accounts stay frozen and property cannot be transferred or sold.

When probate is needed

Whether probate is required depends on the institution and the value and type of assets. In general terms, probate is usually needed for:

• property and land;
• larger bank balances;
• shares and investments; and
• assets where the organisation asks for proof of authority.

Small estates and some assets may not need probate — each organisation has its own thresholds and requirements, so it is worth checking with them directly.

How the process works

Applying for probate generally involves:

• finding the original will (and any codicils);
• completing the application forms;
• lodging the original will, the death certificate and any other required documents;
• paying the court filing fee; and
• waiting for the High Court to issue the grant.

The process usually takes several weeks or months, depending on the court and how complete the application is. Executors can apply themselves, but most people use a lawyer because the forms and requirements are technical and mistakes cause delays.

What happens after probate

Once probate is granted, the executor can:

• collect and sell assets;
• close and open bank accounts;
• pay the estate’s debts and expenses; and
• distribute the estate to the beneficiaries according to the will.

The grant is usually needed again later — for example, when a property is transferred or sold — so the executor keeps it safely with the estate’s records.

Letters of administration

If there is no valid will, the same idea applies but with a different name. Instead of an executor applying for probate, a family member (or another suitable person) applies for letters of administration, and becomes the administrator of the estate. The administrator has broadly the same powers and duties as an executor, but the estate is distributed under the intestacy rules rather than a will.

Common questions

Some questions people often ask:

• How long does probate take? — usually several weeks to a few months, depending on the court and the estate.
• How much does it cost? — there is a court filing fee, plus any lawyer’s fees if you use one; legal fees are usually paid from the estate.
• Do I need a lawyer? — not always, but advice is usually worth it for anything beyond a very simple estate.
• What if the original will cannot be found? — this can be serious; the will may be presumed revoked, and copies may be used only with extra evidence.
• What if I disagree with how the estate is being handled? — get legal advice early; an executor can be held to account.

The bottom line

Probate is the High Court’s confirmation that a will is valid and the executor is authorised to act. It unlocks the estate — accounts, property, shares — and it is the foundation of everything that follows. Our guide on deceased estates and guide on executor duties cover the wider picture.