What Happens If Someone Dies Without a Will in NZ? Intestacy Explained

Understanding Intestacy in New Zealand

When someone dies without a valid will in New Zealand, they are said to have died "intestate." This situation is more common than you might think, and it triggers a specific legal process guided by the Administration Act 1969.

This comprehensive guide explains what happens when there is no will, how assets are distributed, who has priority to administer the estate, and answers common questions around intestacy in New Zealand.

Who Gets What? The Intestacy Distribution Rules

When someone dies without a will in New Zealand, their estate is distributed according to a fixed formula set out in the Administration Act 1969:

If the Deceased Has a Spouse/Partner and Children

• The spouse or partner receives all personal chattels (personal belongings, household items, vehicles)
• The spouse or partner receives NZ$155,000 plus interest from the date of death
• The remaining estate is divided with:
  • One-third going to the spouse or partner
  • Two-thirds divided equally among the children

If the Deceased Has a Spouse/Partner but No Children

• The spouse or partner gets all personal chattels
• The spouse or partner receives NZ$155,000 plus interest
• If there are surviving parents of the deceased, the remaining estate is divided with:
  • Two-thirds going to the spouse or partner
  • One-third divided equally between the parents
• If no parents survive, the spouse or partner receives the entire estate

If the Deceased Has Children but No Spouse/Partner

• The entire estate is divided equally among the children
• If a child has died before the deceased, that child's share passes to their children (the deceased's grandchildren)

Who is Legally Next of Kin in NZ?

The term "next of kin" doesn't have a specific legal definition in New Zealand intestacy law. Instead, the Administration Act 1969 establishes a priority order for who can apply to administer the estate:

1. Spouse or civil union/de facto partner
2. Children
3. Parents
4. Brothers and sisters
5. Grandparents
6. Uncles and aunts

This priority order doesn't necessarily match who will inherit under the intestacy rules, which can sometimes create complications.

Letters of Administration on Intestacy: The Process

When someone dies without a will, instead of applying for probate, the administrator applies for "Letters of Administration on Intestacy." Here's what this process involves:

1. Who Can Apply?

Generally, the person with the highest priority under the Administration Act will apply:

• Spouse/partner has first priority
• Adult children have next priority
• Other relatives follow in the order established by the Act

2. Required Documents

The application requires several documents:

• Application for Letters of Administration (Form PR 3)
• Affidavit of Administrator (Form PR 4)
• Letters of Administration (& copy)
• Death certificate (in certain circumstances)

3. The Application Process

• All applications must be filed with the Probate Registry at the Wellington High Court
• The current filing fee is $260 (fee waivers may be available for those who qualify)
• The processing time is typically 4-6 weeks, but may be longer for complex cases
• Additional information may be requested by the Court

4. Administrator Responsibilities

Once appointed, the administrator has similar duties to an executor:

• Collect and manage the deceased's assets
• Pay debts and liabilities
• Distribute the estate according to the intestacy rules
• Keep accurate records of all transactions
• Complete the administration in a timely manner

Can You Withdraw Money From a Dead Person's Account?

One of the most common questions after someone dies is about accessing their bank accounts. The short answer is: not without legal authority.

Before Letters of Administration

Before Letters of Administration are granted:

• Bank accounts are generally frozen upon notification of death
• Most banks will release reasonable funeral expenses with proper documentation
• Some banks may release small amounts (typically under $5,000) using a statutory declaration process
• Joint accounts usually pass automatically to the surviving account holder

After Letters of Administration

Once Letters of Administration are granted:

• The administrator has legal authority to access all accounts
• Funds should be transferred to an estate account
• The administrator must use funds to pay debts before distributing to beneficiaries
• Financial institutions require the original Letters of Administration or certified copies

Consequences of Unauthorised Access

Accessing a deceased person's accounts without proper legal authority can have serious consequences:

• It may constitute fraud or theft
• You could be personally liable to reimburse the estate
• It may create conflicts with other family members

Practical Steps When Someone Dies Without a Will

Immediate First Steps

1. Register the death - Obtain a death certificate
2. Secure assets - Ensure property is secure and valuables are safe
3. Notify key institutions - Inform banks, employers, government agencies
4. Arrange the funeral - Check if funeral instructions were left or if pre-paid arrangements exist
5. Identify assets and debts - Gather financial information and create an inventory

Starting the Legal Process

1. Determine who should apply for Letters of Administration
2. Gather necessary documents - death certificate, asset information, family details
3. Consider legal assistance - Intestacy can be complex, so professional help is often valuable
4. Prepare and file the application with the Probate Registry
5. Notify potential beneficiaries about the process and timelines

Special Situations and Complications

De Facto Relationships

For a de facto partner to inherit under intestacy:

• The relationship must have been for at least 3 years
• If the relationship was shorter, the partner may need to apply to the Family Court
• Same-sex and opposite-sex de facto relationships are treated equally

Blended Families

Intestacy can create particular complications in blended families:

• Step-children do not automatically inherit under intestacy rules
• The spouse/partner gets priority, which may leave biological children from previous relationships with less than expected
• This is one of the strongest reasons to have a properly drafted will

Cultural Considerations

New Zealand law recognises certain cultural aspects in estate administration:

• Māori customary practices regarding taonga tuturu (treasured items)
• Special provisions for whenua Māori (Māori land) under Te Ture Whenua Māori Act 1993
• Cultural funeral practices and observances

Small Estates

For estates under $15,000:

• A simplified process may be available
• Some institutions will release funds without requiring Letters of Administration
• Public Trust offers services specifically for small intestate estates

Searching Probate Records in NZ

If you need to verify whether someone had a will or if Letters of Administration were granted:

How to Search

• Contact the Probate Registry at the Wellington High Court
• Provide the full name of the deceased and date of death
• Pay the search fee
• Allow approximately 10 working days for the search to be completed

What You'll Receive

If a grant was made, you can request:

• A copy of the grant (probate or Letters of Administration)
• A copy of the will (if there was one)
• Details of the executor or administrator

Avoiding Intestacy: The Importance of Having a Will

The intestacy rules are a one-size-fits-all solution that may not reflect your wishes. Having a will offers significant advantages:

Key Benefits of Making a Will

• You decide who benefits from your estate
• You can appoint guardians for your children
• You can make specific gifts of sentimental items
• You can include people who wouldn't benefit under intestacy rules (like friends or step-children)
• You can establish trusts for beneficiaries who need protection
• You can make provision for pets and charitable causes

Making a Valid Will

To ensure your will is valid:

• It must be in writing
• It must be signed by you
• Your signature must be witnessed by two people who aren't beneficiaries
• You must have testamentary capacity when you make it
• It should be kept in a safe place and its location known to your executor

This information is current as of May 2025 but is subject to change as laws and court procedures are updated. It is not intended to constitute legal advice. For the most current advice, please consult with a legal professional.