Because the deceased left no instructions in the form of a will, the law has to determine who gets what on intestacy, and it prescribes the order of entitlement.

The relevant provision confirms the deceased’s next of kin inherits the estate, and if there is more than one such person then it is distributed proportionately amongst those equally entitled. This is set out in s77 of the Administration Act 1969, reproduced in the table below:

Intestacy Rules NZ

Person or people intestate leaves	How estate to be distributed
1 Husband, wife, civil union partner, or surviving de facto partner, but no issue and no parents	Personal chattels (as defined in section 2(1)): the husband, wife, civil union partner, or surviving de facto partner takes these absolutely, except that any that are subject to a hire purchase agreement, are taken subject to the vendor’s rights under that agreement Residue of the estate: – this stands charged with the payment to the husband, wife, civil union partner, or surviving de facto partner of the prescribed amount, plus interest (at the rate prescribed by or under section 39) on that amount from the date of the death until that amount is paid or appropriated – anything that remains of the residue is held in trust for the husband, wife, civil union partner, or surviving de facto partner absolutely
2 Husband, wife, civil union partner, or surviving de facto partner, and issue	Personal chattels (as defined in section 2(1)): the husband, wife, civil union partner, or surviving de facto partner takes these absolutely, except that any that are subject to a hire purchase agreement, are taken subject to the vendor’s rights under that agreement Residue of the estate: – this stands charged with the payment to the husband, wife, civil union partner, or surviving de facto partner of the prescribed amount, plus interest (at the rate prescribed by or under section 39) on that amount from the date of the death until that amount is paid or appropriated – anything that remains of the residue is held in trust as follows: – a third for the husband, wife, civil union partner, or surviving de facto partner absolutely; and – two-thirds on the statutory trusts for the issue of the intestate
3 Husband, wife, civil union partner, or surviving de facto partner, no issue, but one or both parents	Personal chattels (as defined in section 2(1)): the husband, wife, civil union partner, or surviving de facto partner takes these absolutely, except that any that are subject to a hire purchase agreement, are taken subject to the vendor’s rights under that agreement Residue of the estate: – this stands charged with the payment to the husband, wife, civil union partner, or surviving de facto partner of the prescribed amount, plus interest (at the rate prescribed by or under section 39) on that amount from the date of the death until that amount is paid or appropriated – anything that remains of the residue is held in trust as follows: – two-thirds for the husband, wife, civil union partner, or surviving de facto partner absolutely; and – a third for the father and mother in equal shares absolutely or, if the intestate leaves only one parent, for that parent absolutely
4 Issue but no husband, wife, civil union partner, or surviving de facto partner	All of the estate is held on the statutory trusts for the issue of the intestate
5 No husband, wife, civil union partner, or surviving de facto partner, and no issue, but one or both parents	All of the estate is held in trust in equal shares for the parents, but if the intestate leaves only one parent, for that parent
6 No husband, wife, civil union partner, or surviving de facto partner, no issue, and no parents, but 1 or more brothers or sisters (whether of full or half blood)	All of the estate is held on the statutory trusts for the 1 or more brothers or sisters
7 No one who takes an absolutely vested interest under the trusts referred to in items 1 to 6, but one or both maternal or paternal grandparents, or 1 or more maternal or paternal uncles or aunts (whether of full or half blood)	All of the estate is held in trust as follows: as to half: – in equal shares for the maternal grandparents, but if the intestate leaves only one such grandparent, for that grandparent; or – if the intestate leaves no maternal grandparent, then on the statutory trusts for the maternal uncles and aunts; or – if no maternal grandparent or maternal uncle or aunt takes an absolutely vested interest under those trusts, then on the trusts on which the other half of the estate must be held as to the other half: – in equal shares for the paternal grandparents, but if the intestate leaves only one such grandparent, for that grandparent; or – if the intestate leaves no paternal grandparent, then on the statutory trusts for the paternal uncles and aunts; or – if no paternal grandparent or paternal uncle or aunt takes an absolutely vested interest under those trusts, then on the trusts on which the first half of the estate must be held
8 No one who takes an absolute interest under items 1 to 7	All of the estate belongs to the Crown as bona vacantia, and the Crown may (without prejudice to any other powers), out of all or any part of the estate, provide for— – dependants (whether kindred or not) of the intestate; and – other persons for whom the intestate might reasonably have been expected to make provision.

Who is entitled to a grant of letters of administration on intestacy?

If there’s a valid will, probate is granted to the executor(s) named in the will. But where there’s no will, the court grants letters of administration to the next of kin with the highest entitlement – they are called the administrator.

In general, a person must have a beneficial interest in the estate to be entitled to a grant. In other words, the person is typically one of the relatives as referred to in the table above.

The same act provides a dollar amount for spouses when there are also children of the deceased (or no children, but surviving parents). If there are children, the spouse receives all personal chattels, the prescribed amount (currently $155,000), and one-third of the residue of the estate. The children receive two-thirds of any residue.

small estates

If certain assets in the estate are less than $15,000 it may not be necessary to apply for a grant of administration.

The intestacy application

Exactly as with probate, a court application is required to be made to the Probate Unit in Wellington. The following is required to be lodged at court:

• Application (form PR1AA)
• Affidavit(s) in support
• Letters of administration
• Notice of option A or B (if application by spouse)
• Court fee

It’s worth referring to the article “what is probate nz?” for the comments on the application which are also relevant here.

The affidavit in support which is required to be provided is based on the relationship with the deceased, as this is the basis for the entitlement to the grant. There are different versions of the affidavit depending on the relationship to the deceased – see form PR3 to PR6 here.

Searches required on intestacy

The court needs to be satisfied that the deceased has no will. this requires an advertisement to be placed, usually through the local Law Society requesting local solicitors to search their records to confirm if they might hold a will for the deceased.

The applicant is also required to confirm in their affidavit that they have searched the deceased’s papers for a will (& nothing has been found).

sTATUS OF CHILDREN ACT

This requires a search of the records held by the Registrar-General of Births and Marriages to determine if there are any children not known to the next of kin. The reason being that any such child revealed could have an entitlement in the intestacy.

Similarly to confirming a search of the deceased’s papers for the will, confirmation also needs to be provided of a search through papers in relation to other children.

Next steps

Applications for a grant of letters of administration on intestacy can be tricky. If you are a next of kin, it is advisable to get legal help.