Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to deal with a relative dying without a will
If a person dies without making a will, he or she is said to have died "intestate". Since there is no will, the deceased person's property is distributed according to rules laid down in the ADMINISTRATION ACT 1969 (see below, "How is the deceased's estate distributed?").
In order for someone to have authority to distribute the deceased's estate, an application must be made to the court for it to grant "letters of administration" for the estate, which means that the court appoints a person, usually a close surviving relative, as the "administrator" of the estate. (By contrast, if there is a will the executor appointed under it applies to the High Court for it to grant "probate" of the will: see How to apply for probate of a will.)
What is the administrator's role?
The administrator is the personal representative of the deceased and has authority to deal with and distribute the deceased's estate in accordance with the rules in the ADMINISTRATION ACT 1969. The administrator fills the same role as the executor under a will (see How to be the executor of a will).
How do I apply to be appointed administrator?
You will need to apply in writing to the High Court. Except when someone is contesting the issue, the application is made "ex parte", which means it's not necessary to give notice of the application to anyone else.
The application must use the general format shown in Form 20 of the High Court Rules (which is in the Second Schedule to the JUDICATURE ACT 1908). Usually applications are made through a lawyer; if you do use a lawyer, he or she must certify that the application is correct.
The application must be filed in the High Court registry nearest to where the deceased was living when he or she died or, if the deceased wasn't living in New Zealand, at the registry nearest to where the deceased's property is.
What if someone is contesting the issue?
If someone is challenging you being granted letters of administration (for instance, claiming that a valid will exists), the process is more complicated and will involve a trial in the High Court. You must apply "in solemn form", which means you file a statement of claim under the standard procedure for civil proceedings in the High Court.
You name as defendants the people who are contesting the issue and the people who, if you are unsuccessful, may be entitled to a grant of probate (if they are claiming a valid will exists) or letters of administration.
The defendants then have the opportunity to file a statement of defence and, if they wish to, a counterclaim.
How does the court decide who to appoint as administrator?
There is an order of priority to aid the court in determining who to appoint as administrator -
- the surviving spouse, or the surviving civil union or de facto partner
- brothers and sisters
- uncles and aunts, or failing them their children
How is the deceased's estate distributed?
The ADMINISTRATION ACT 1969 sets out the rules of intestacy, which state who will receive the property. Generally the property goes to family members, as follows -
- If the deceased had a husband or wife or a civil union or de facto partner, but no surviving parents or direct descendants, the spouse or partner will get all of the estate.
- If there is a spouse or partner and also direct descendants, the spouse or partner will receive all the personal chattels, the first $121,500 of the estate and a one-third share of the remaining property. The other two thirds go to the direct descendants.
- If there is a spouse or partner, no direct descendants but surviving parents, the spouse or partner receives all the personal chattels, the first $121,500 of the estate and two thirds of the remaining property, with one third going to the surviving parents.
- If there are direct descendants but no husband or wife or civil union or de facto partner, the estate goes to the direct descendants.
- If the deceased did not have a surviving spouse or partner nor any direct descendants, the deceased's parents will receive the whole estate.
- If there are no parents, the deceased's brothers and sisters or their direct descendants receive the estate.
- If there are no brothers and sisters, nor any of their descendants, the estate is shared between grandparents or, if none, aunts and uncles.
- If none of these parties exist, the Crown will receive the property.
De facto partners were included in the above provisions on 1 February 2002, but only where the deceased died on or after that date. Further, some de facto partners are not included - see below.
Civil union partners were included in the above provisions on 26 April 2005.
When are de facto partners entitled to take property under the rules of intestacy?
Since 1 February 2002, a de facto partner (including same-sex partners) has had the same rights to receive the deceased's property under the rules of intestacy as has a legal spouse, provided
- the de facto partner was living with the deceased when he or she died, and
- the relationship had lasted for at least three years
If the relationship was for less than three years, the de facto partner has no right to receive under the intestacy rules, unless the court is satisfied:
- either that
- there is a child of the relationship, or
- the partner made a substantial contribution to the de facto relationship, and
- that it would create serious injustice if the de facto partner were not entitled to receive under the rules of intestacy
If the deceased dies leaving both -
- a husband, wife or civil union partner, and
- a de facto partner,
then those two people share equally in the property that would have gone to a spouse or partner had the deceased left only a spouse or civil union partner or only a de facto partner. The same applies if the deceased leaves two or more de facto partners.
Surviving spouse or partner may choose division of property instead
A surviving spouse or civil union or de facto partner is entitled to choose between either -
- applying under the PROPERTY (RELATIONSHIPS) ACT 1976 for the property of the relationship to be divided according to the Act's equal-sharing rules, or
- not having the property divided under the Act and instead receiving whatever he or she is entitled to under the rules of intestacy.
For the division of property, see How to: The division of property when a marriage, civil union or de facto relationship ends.
- A lawyer will be able to advise you of any entitlement you may have to the deceased's property under any intestacy, and can also assist you in applying to be appointing administrator of the estate.
- A lawyer can also help you make a will and avoid problems that could lead to your own intestate death, such as your will not being signed and witnessed correctly, or it being lost (see How to make a will). A lawyer can also help you avoid a partial intestacy, such as where your property has not been adequately gifted, or where a beneficiary under your will has died before you without you having made any alternative provision under the will for the property in question.