What are the rights of a beneficiary of an Will?


If you have been left an inheritance in the will of a deceased person, you are considered to be a beneficiary of the estate. But what happens now? How do you get information about the will and your inheritance, and when will your inheritance be paid out?

The role of the Executor(s)
When a person dies leaving a valid Will, the Executor(s) step into the shoes of the deceased person in terms of dealing with the financial assets and debts of the person’s Estate, which they must do in accordance with the Will.

When someone dies without a valid Will (dying “Intestate”), the Administration Act sets out who can apply to be Administrator(s). Once the Administrators are appointed, just as with Executors they will take over for the deceased person in terms of dealing with their financial assets and debts. The Administrators are required to do this in accordance with rules set out in the Administration Act.

The Executors / Administrators have control of the deceased person’s Estate, and they are the ones who decide what information is passed onto the Estate beneficiaries.

Basically, the beneficiaries named in the deceased person’s Will or the beneficiaries who will benefit under an intestacy have very few rights in relation to the person’s Estate.

The role of the Estate solicitor
The Estate solicitors take their instructions directly from the Executors or Administrators, and the Estate lawyers can not do any of the following without instructions from the Executors / Administrators:

• Send a copy of the Will out to beneficiaries
• Discuss the Estate or the contents of the Will with beneficiaries
• Correspond with the beneficiaries of the Estate
• Take instructions from the beneficiaries of the Estate in relation to the Will or the deceased person’s intentions
• Give any legal advice to the beneficiaries of the Estate
• Tell the beneficiaries who the executors are

Finding out what the will says
In New Zealand there is no official “reading of the will” as appears in many American movies and TV shows. Often the Executors will authorise that a copy of the Will be sent out to the beneficiaries of an Estate, at which point the Estate solicitors can do so. However, there is no legal requirement for the Executors to provide a copy to beneficiaries, and even if a copy is given the Estate solicitors cannot generally discuss the contents of the Will, take instructions from or give legal advice to beneficiaries of an Estate.

Once a grant of Probate (in the case of a Will) or Letters of Administration (in the case of intestacy) has been obtained, it becomes a matter of public record and a copy of the document can be obtained from the Court for a nominal fee.

The Probate document has a copy of the Will attached, so any beneficiaries who obtain a copy of the Probate document from the Court will at that point be able to see the Will even if the Executors had not previously authorised the lawyers to send a copy of the Will to the beneficiaries.

A grant of Letters of Administration on Intestacy is somewhat different in that there is no copy of a Will attached (because there is no Will). In this case the Estate will be administered in accordance with the Administration Act.

Another type of Letters of Administration is called “Letters of Administration with Will Annexed”. This is where the deceased person left a Will but it could not be proven to the Court because, for instance, the named Executor(s) had died or were not able or willing to act as an Executor. In this case the Court appoints one or more beneficiaries named in the Will as the Administrator(s), a copy of the Will is attached to the Letters of Administration document and the Administrators are charged with administering the Estate in accordance with that Will.

Distribution of the estate
In most cases Executors or Administrators will wait for at least six months from the grant of Probate or Letters of Administration before any distribution of the Estate is made. This is because they can themselves be held personally liable to settle any successful claims that have come in prior to six months. In some cases they will wait for twelve months before distributing the Estate.

While waiting for the six month waiting period to expire the Executors or Administrators will attend to bringing in the assets and paying any debts of the Estate, but they will generally not make any distribution of Estate funds to the beneficiaries during this time.

Information on the estate administration process
The Executors or Administrators will in many cases keep the beneficiaries advised regarding the progress made in administering the Estate; however they are not required to do so. In some cases they may not even tell the Estate beneficiaries that they have been named in the person’s Will, or tell them that the Estate will not be distributed before either six or twelve months from the date that Probate or Letters of Administration was granted.

What can you do if you are not being kept informed?
As stated above, in most cases the Executors or Administrators will share information regarding the Estate with the beneficiaries, and are forthcoming in relation to the Estate and the process of administering / distributing an Estate.

However, if you are a beneficiary and the Executors / Administrators have not kept you informed about your entitlements in relation to the Estate, your only real option is to instruct a solicitor to act on your behalf as a beneficiary of the Estate and obtain your own independent legal advice.

It is also important to know that, in the case of claims on an Estate, most claims made by one or more beneficiaries of an Estate must be lodged within twelve months from the grant of Probate or Letters of Administration.

If you have any questions regarding administering a deceased estate please contact our Estates AdministatorMimi Lewell by phone on 837 6831 or email mimi.lewell@smithpartners.co.nz.

 you wish to seek independant legal advice as a beneficiary please contact Carolyn Ranson by phone on 837 6891 or email carolyn.ranson@smithpartners.co.nz


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