What to do when someone passes away

31 October, 2022 | Alex Dunne

There are no immediate pressing legal issues to take care of when someone passes away.  Family members should take time to grieve before worrying about legal issues for the estate.

Before the Funeral:

It is a good idea to locate the will before the funeral as it often includes instructions regarding burial or cremation, and other instructions relating to the funeral in the will.

The will also names the executor(s). It is the responsibility of the executor to organise the funeral / burial / cremation.

If a copy cannot be found among the deceased’s possession, a copy can be requested from the law firm that holds the will. It is important to know that once a person has died, any law firm holding the will can only release a copy upon written instruction from the executors named in the will.

Unless you need to obtain a copy of the will to check for will instructions, there is no need to contact the lawyers straight away.  Take some time to focus on the personal side of things – the official administration process can start after the funeral.

After the Funeral:

Only the executors named in the will have the legal right to access the will and liaise with the solicitors administering the estate.  In New Zealand there is no official “Reading of the Will”. The executors may choose to share the will with beneficiaries / family members or invite them to meetings with the solicitors – but there is no legal obligation to do so.

If there is no will, then the Administration Act 1969 will apply – for more information you can read the article “What happens if there is no will? Dealing with an intestate deceased estate.” 

Choose a solicitor to administer the estate:

The executors’ first decision is to decide which law firm will handle the administration of the estate. The estate does not have to be administered by the same law firm or trustee organisation (ie, Public Trust or Guardian Trust) that holds the will at the time of death. However in the case of Public Trust they are usually named as executors of the will so they will decide who handles the administration of the estate.

If there is more than one executor, they must work together and agree on who will act as the solicitors for the estate. In this case, the executors will need to also agree on the general process of administering the estate.

Renouncing as an executor:

If there is more than one executor and if, for whatever reason, one of them cannot or does not want to be involved in administering the estate, then that person can “renounce” the position. This will leave the other executor to act alone. However, a person can only renounce the position of executor if he or she has not already started the process of administering the estate.

Payment of estate bills:

It is the responsibility of the executors to pay the bills of the estate and ensure that all estate property is properly protected – i.e. insured.  If it is necessary to obtain a formal grant of administration from the High Court, any individually owned bank accounts of the deceased will be frozen until it has been obtained. It is the executor’s responsibility to pay the bills in the meantime. The executors can be reimbursed for any expenses incurred once probate has been granted, providing the estate has enough funds to do so.

Gather information on the estate assets and debts:

The executors, together with help from other family members, should gather together as much information about the estate as they can prior to the initial meeting.

This includes information about:

• The assets of the estate – i.e. property, life insurance, shares etc. (Including information on how they are held – i.e. are they jointly held assets, assets held as to a part share or assets held solely in the name of the deceased?)
• Liabilities/debts of the estate – funeral accounts, ongoing utility bills, loans etc.
• Official legal documentation for the deceased – Death Certificate, Birth Certificate etc
• Information on family members – children, partners (including ex partners), siblings and parents

This information will be important not only for bringing in the estate assets in preparation for distribution, but also to ascertain whether or not formal administration (i.e. Probate or Letters of Administration) will be required.

Click here for a full list of the types of information you should take to your initial meeting.

Paying the funeral bill:

Once you know which solicitors will be handling the estate you can ask the funeral home to send the funeral account and Death Certificate directly to them. Alternatively take both of these (the originals) to your solicitors at your initial meeting with them.

Many funeral accounts offer a substantial discount for early payment – your solicitor can liaise with the funeral home to extend the date for obtaining the discount.

With an estate the funeral account is the first bill that is meant to be paid. Because of this your solicitors can arrange for the account to be paid directly from the deceased person’s bank accounts. Once the solicitors have received or sighted the original Death Certificate and funeral account, they can make certified copies of them and send them to the bank to request that the funeral account be paid directly from the bank accounts prior to obtaining Probate or Letters of Administration. Most banks will do this, but only for the funeral account

Click here to learn more about what happens in your initial meeting with an estate lawyer.

If you have any questions regarding the above or wish to seek advice regarding administering a deceased estate, please contact personal assistant, Suzanne Sumner by email on suzanne.sumner@smithpartners.co.nz or by phoning 09 837 6840 to schedule an appointment with author, Alex Dunne.