Are you an executor living overseas?
We can assist – contact New Zealand estate law expert, Mimi Lewell today to set up an appointment.
15 December, 2016 | Mimi Lewell
If there are two or more named executors, the one(s) living overseas can renounce Probate (link) (as long as they have not begun the process of administering the estate) and the remaining executor(s) can carry out the administration of the estate.
If you are the only executor, or if you do not wish to renounce Probate of the Will, the process of applying for Probate becomes more complicated. The process for, say an executor living in Australia would be:
The solicitors in New Zealand who are acting for the estate will prepare the documents for applying for Probate
They will contact you and ask you to provide the name of your lawyer or a law firm in your area.
The New Zealand lawyers will send the Affidavit for Probate together with the original Will and the authorities that have been prepared (to pay accounts / liaise with IRD / release information / bring in assets i.e. close bank accounts etc) that will assist in administering the estate to the law firm in Australia along with specific bank / insurance forms, and ask that the solicitor contact you and attend on you to sign the affidavit, authorities and forms
The documents that are sent to Australia will need to be sent by International Courier (because among other things they contain the original Will) and the Australian solicitors will be asked to return the signed documents also by way of an International Courier.
The documentation will need to be amended to show that, instead of being witnessed by “A Solicitor of the High Court of New Zealand”, the overseas executor’s signature has been witnessed by “A Solicitor of the Supreme Court of __________________”. Under the Australian solicitor’s signature and title you will need to put the following phrase:
“a person authorised by the laws of Australia, or authorised by a Judge to administer the oath required for this affidavit”.
The New Zealand solicitor will need to send very specific instructions to the Australian solicitor in terms of how the documents will need to be signed and witnessed and to initial any amendments made to the documents.
The High Court requirements are extremely strict. If the documents are not signed / initialed exactly as requested then it may be necessary to send the documentation back to Australia to have it signed again (we have recently had an instance where the executor and solicitor had not initialed at the bottom of each page of the affidavit and we had to send it back to Australia to be initialed before we could file the application with the Court)
When the documents have been returned from overseas, if there are other executors who live in New Zealand we can get them in at that time to sign the Probate application documents and the authorities.
Once the Affidavit for Probate is fully signed by all the executor(s) the rest of the Probate documents can be signed and the application will be ready to be filed with the High Court at Wellington.
When Probate has been granted the authorities already signed by the executors can be used to close bank account(s) and bring in the other investments.
If there is a property that is owned wholly or partially by the estate the documentation will need to be prepared to transmit the property, which will put the property into the names of the executor(s). This can only be completed after probate has been granted.
The documentation for transmitting the property is made up of some Authority & Instruction (“A&I”) forms and an Application for Transmission. A certified copy of the Probate document will need to be attached to the A&I forms prior to being signed by the executor(s), which is why the A&I forms / Transmission documents cannot be completed until Probate has been granted.
The transmission document contains a Statutory Declaration that needs to be signed in front of a lawyer or other person who is authorised to take an oath, so the A&I / Transmission documents will probably need to be sent back to the lawyer in Australia who took the affidavit to attend again on you as the executor to sign them.
If there is a property that is held jointly with another person, the transmission document requires a certified copy of the Death Certificate to transmit the property to the joint property owner. In this case the property does not form part of the estate.
In the case of a jointly held property, if the joint property owner is the same person as the overseas based executor, you can attach a certified copy of the Death Certificate (once issued) to the A&I / Transmission paperwork and it can be sent along with the Affidavit for Probate and authorities, in which case all of the paperwork can be signed at the same time.
This example is for an executor or executors residing in Australia. With executors living in other countries the process would be similar but potentially more complicated and expensive (depending on the legal system of the particular country, and the distance from New Zealand).
5 April, 2012 | Mimi Lewell