What is Probate?

Probate is the High Court’s confirmation that a Will is valid and represents the deceased’s final wishes. Once granted, the executors named in the Will are authorised to collect the estate’s assets, pay debts, and distribute the balance to beneficiaries.

Probate is typically required where the deceased had more than $15,000 held with any financial institution, such as banks or KiwiSaver providers. If the deceased owned land in their sole name, probate will also be necessary. Smaller estates below this threshold may sometimes be managed without probate, although KiwiSaver providers often still require it.

Letters of Administration

If someone dies without a valid Will, they are said to die intestate. In that situation, the High Court may grant Letters of Administration to an appropriate person, usually a close relative. The Administration Act 1969 sets out the order of who can apply, generally starting with the surviving spouse or partner, then children, parents, siblings, and more distant relatives.

Distribution is also set by law. For example, if there is a surviving partner and children, the partner receives personal and household effects, the first $155,000 of the estate plus interest, and one-third of the remaining assets. The children share the other two-thirds, often held in trust until they reach 18 years.

Upcoming Reform

On 31 July 2025, Justice Minister Hon Paul Goldsmith announced Cabinet’s approval of an increase to the financial threshold for probate and letters of administration. The threshold will rise from $15,000 to $40,000, reflecting changes in asset values since it was last set in 2009. This reform is designed to reduce unnecessary court applications for smaller estates and to streamline administration for families and executors.

Validation of Informal Wills

While the law sets out strict formalities for making a Will under section 11 of the Wills Act 2007, including requirements for writing, signing, and witnessing, the Court has power under section 14 to validate documents that do not meet these requirements.

To be validated, the Court must be satisfied that the document was intended to be a Will and records the deceased’s testamentary wishes. This may include draft Wills, unsigned Wills, or even notes and emails. Evidence such as the wording of the document, statements made by the deceased, and the circumstances of preparation will be considered.

The Court’s focus is on substance rather than form. Recent decisions such as Re Campbell [2014], Mason v Mason [2022], and Re Charteris [2025] confirm that the Courts will uphold testamentary intentions where possible, provided the deceased had capacity and was not subject to undue influence.

Why These Processes Matter

Applying for probate is generally more straightforward and cost-effective than letters of administration, which can be complex and expensive. Having a properly drafted Will avoids uncertainty, reduces costs, and ensures your wishes are carried out. At the same time, the upcoming reform will ease requirements for smaller estates, and section 14 provides a safeguard for families where a Will does not meet the usual formalities.

Making a Will remains the best way to provide certainty for your loved ones, but the law does provide safety nets to respect genuine intentions where formalities have not been followed.

Disclaimer: The information in this article is intended for general guidance only and should not be relied on as legal advice. While we aim to provide accurate information, it is not a substitute for professional advice specific to your situation. Please consult a qualified lawyer before taking any action based on this content.