How to find out if someone has a Will: a guide to missing Wills in New Zealand

Losing a loved one is never easy. Alongside the emotional impact, there are practical and legal steps involved in estate administration, including identifying assets, obtaining probate and distributing the estate. At Holland Beckett, our goal is to make this process as straightforward as possible. As part of that, we explain the legal terminology you may encounter in clear, practical terms so you know what to expect at each stage. Common Estate Administration terms Affidavit: A formal written statement that is sworn or affirmed to be true, usually for filing in Court. Bequest / Legacy: A gift left to someone in a Will. “Legacy” is often used where the gift is money. Beneficiary: A person entitled to benefit from a Will or Trust. Capacity: A person’s legal ability to make decisions or enter into binding arrangements. In the context of Wills, this refers to whether a person is of sound mind when making their Will. Different rules can apply depending on the situation. Codicil: A document that amends an existing Will rather than replacing it entirely. Common Form Probate: The usual process for applying for probate where there is no dispute about the Will. Devise: A gift of land or property in a Will. Disclaim / Renounce: To refuse or give up a right or benefit. an executor may renounce their role. a beneficiary may disclaim a gift under a Will. Estate: Everything a person owns in their own name at the time of their death. Execution (of a document): Signing a document in a way that meets legal requirements, including witnessing. Executor: The person named in a Will who is responsible for administering the estate. Being an executor of a will carries important legal responsibilities. Issue: A person’s direct descendants, including children, grandchildren and further generations. Intestate: When a person dies without a valid Will. In these circumstances, the estate is distributed according to New Zealand intestacy rules. Letters of Administration: A Court order appointing someone to administer an estate where: there is no Will, or there is a Will but no executor is willing or able to act. Life Interest: The right for someone to use or benefit from an asset (for example, living in a house) for their lifetime, with the asset passing to someone else afterwards. Probate: A Court process confirming that a Will is valid and giving the executor authority to administer the estate. Many estates require a probate application before assets can be collected and distributed. Residuary Estate: What remains of the estate after all debts, costs and specific gifts have been dealt with. Residuary Beneficiary: A person entitled to share in the residuary estate. Solemn Form Probate: A more formal Court process used where a Will is disputed or there are concerns about its validity. Testamentary: Something that arises under a Will, such as a testamentary trust. Testamentary Capacity: The legal ability to make a Will. Generally, a person must understand the nature and effect of making a Will, the extent of their assets, and who might reasonably expect to benefit. Testator / Testatrix: Older terms referring to a person who has made a Will. Today, “Will-maker” is more commonly used. Our Approach While some legal terminology is unavoidable, it should never be a barrier to understanding what is happening. We guide our clients through each step of the estate administration process in clear, practical terms, so you always know: what needs to be done; why it matters; what decisions you may need to make. Need help with Estate Administration? If you would like advice on estate planning, probate, or estate administration, our specialist succession and estates team can provide clear, practical guidance tailored to your circumstances.

What has changed? Effective 24 September 2025, the threshold for informal administration under the Administration Act 1969 has increased from $15,000 to $40,000, reducing the need for a formal probate application or letters of administration in some circumstances. This long-awaited change (which had not been updated since 2009) brings significant relief for families dealing with modest estates. Administration without a grant from the Court The increase in threshold allows certain financial assets to be released when someone dies without requiring a formal grant of probate or letters of administration, potentially reducing cost and delay for families. The process is governed by sections 65(2) and 65(5) of the Administration Act 1969 and applies only to specific institutions and asset types. What assets are covered? The new $40,000 threshold applies to financial assets held by: Superannuation fund trustees Societies Banks Employers Local authorities Trustee corporations Kāinga Ora ACC MSD The Crown These institutions may release funds without probate, provided they are satisfied the owner has died and the recipient is one of the eligible persons listed in section 65(2)(a)–(e). Life insurance policies under section 65(5) are also covered by the new threshold. When is probate still required? The increase does not apply to: Shares and debentures (threshold remains $15,000) Non-financial assets such as real estate, vehicles, jewellery or artwork Cryptocurrency, as exchanges are not listed institutions under the Act If these assets are involved, a formal probate application or letters of administration process may still be required. Institutions retain discretion and may refuse informal administration. Policies vary and may evolve in response to the change. Practitioners should be aware that institutions are protected under section 65(6) for payments made in good faith. Does it apply to deaths before 24 September 2025? Yes. The Act specifies that the new threshold applies regardless of the date of death, as long as no grant has already been issued. Families involved in estate administration may choose to wait until after 24 September 2025 to benefit from the higher threshold. Funeral expenses: are they extra? No. While banks may release funds directly to funeral directors, this is not added to the $40,000 threshold. The prescribed amount is assessed as at the date of death. What does this mean for estate administration? If you are managing a loved one’s estate, or advising on estate planning, the higher threshold may offer a simpler and faster pathway where assets are modest. It may also reduce legal costs in some cases, while also reducing the administrative burden on the High Court. However, it remains essential to have a valid Will and proper estate planning arrangements in place – especially as more estates are growing in value or involve trusts, cross-border assets or complex family structures. If you are unsure whether probate or letters of administration our succession and estates team can provide practical guidance.

What is a testamentary guardian? A testamentary guardian is a person appointed by Will or Deed to help make important decisions about a child\'s upbringing after a parent\'s death. By appointing a testamentary guardian you are not appointing somebody to care for your child if you die. That is something quite different and cannot be provided for in a Will. You can read more about testamentary and court appointed guardians in the Care of Children Act 2004. What does a testamentary guardian do? A testamentary guardian is appointed alongside the surviving parent (usually) for input into “the big important decisions” about a child’s upbringing like education (where do they go to school), health (major medical decisions not routine day-to-day medical issues), religion, residence (which country or region do they live in, not a specific house or street), and permission to marry under the age of 18. These rights and responsibilities end when the child attains the age of 18 years or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner. A testamentary guardian has the same rights and responsibilities as the living parent/guardian but only upon the death of the appointor. They have no say in the upbringing of the child prior to that parent’s death. When should you appoint one? It is worth considering if you have separated from your child’s other parent to ensure your views about upbringing are represented in the event of your death or if you are worried your family will be “cut off” from the child when you die. If you are still happily in a relationship it is probably not necessary to appoint a testamentary guardian as it is likely you can trust your spouse/partner to make good guardianship decisions for your children if you die. If you are worried about what happens if you both die together then you could each say in your wills that “if we both die together, we appoint X as a guardian.” If you are the sole guardian of your child (the other parent has died already) then you should definitely consider appointing a testamentary guardian. So, who looks after my children if I die? The surviving parent would usually remain carer for the child unless unwilling or unable or unsuitable. If you have both died it is assumed that the family will rally around the child to take them in. Whoever they live with (which may be the testamentary guardian if appointed or may not be – there is no default assumption) may then file an application for a parenting order providing them day-to-day care together with guardianship orders if necessary. A testamentary guardian could apply for a parenting order if they wanted to contest day-to-day care or seek contact rights to the child, and as they are already a guardian they would not need the leave of the Court to do so. Before an application for a parenting order can be filed, the guardian will normally have to provide evidence that he or she has sought to resolve the matter with the other guardian/s by family dispute resolution unless the circumstances are urgent. The legal test to determine a child’s care arrangements is “what is in the welfare and best interests of the child” so it depends on all the circumstances at the time. Can a testamentary guardian refuse the role? Only one testamentary guardian can be appointed and the consent of the person to be appointed as a testamentary guardian is not required. A person appointed as a testamentary guardian cannot decline the appointment. As a guardian of the child, the appointee could apply to the court for an order for his or her own removal. Another guardian could also apply for removal of the testamentary guardian.