If someone dies and leaves an interest in general land (a house, unit, section, farm, or other land that is not Maori freehold land), probate or letters of administration are usually required, followed by a transmission to executor/administrator/s and a transfer.
However, if your loved one was Maori, you may be able to avoid that expense.
Firstly, if that interest in general land is the only reason you need probate or letters of administration, you may be able to avoid that expense by changing the status of the land to Maori freehold land.
Secondly, even if you still need probate or letters of administration for the rest of the estate, or if it is not appropriate to change the status of the land, you can avoid the need for a transmission and transfer under the main land transfer system. You have additional options.
Maori means a person of the Maori race of New Zealand; and includes a descendant of any such person.’ (TTWMA s4) So this applies to any deceased land owner who was of (part) Maori descent.
This article tells you more about what is possible.
If your loved one was not a Maori
If your loved one owned general land and was not a Maori, there must be a grant of administration (probate or letters of administration); and then the administrator/executor/s must register a transmission. They then have the authority to deal with the land on behalf of the estate. More info on our main page about transmissions.
Eventually they either sell the land or transfer it to the beneficiaries – those who inherit under the will or according to the law of intestacy (if there is no will), or under some other agreement that everyone has reached. That needs a transfer. More info on our main page about transfers.
The LINZ registration fees are $90 for a transmission, and $90 for a transfer. There are also the legal fees for preparing the paperwork and the edealing.
If your loved one was a Maori
If your loved one was a Maori, there are other options. You can still use the land transfer system outlined above, but you may be able to avoid it.
The reasons are historical. In the 1960s, legislation compulsorily changed a lot of Maori freehold land to general freehold land, without owners being consulted. In the 1970s, that process was stopped; but many owners did not even know their land was no longer Maori freehold land, let alone that they could apply to the Maori Land Court to change it back again. Meanwhile it became more complicated and expensive to process through the general estate-administration system and land system, especially after owners had died. It was made even harder because most died without wills – and, culturally, they would not have needed a will if their land had still been Maori freehold land and they were leaving it to their children.
These other options are primarily intended to help families regain title to ancestral land and put things right.
Change the land to ‘Maori freehold land’ – avoid the need for letters of administration or probate
If it would make more sense for the general land to be changed to Maori freehold land, then one or more of the people who will inherit from your loved one can apply to the Maori Land Court for a status order. The status order changes the status of the land from general land to Maori freehold land. (See Te Ture Whenua Maori Act 1993 s 133.)
Even if your loved one was one of several owners, the Maori Land Court can still make an order to change the status of the land from general land to Maori freehold land. It does not require 100% agreement. It does require the owners to have had ‘adequate opportunity to consider the proposed change of status’, and a ‘sufficient proportion’ of owners to agree. The Maori Land Court must be satisfied that: (a) the land can be managed or utilised effectively as Maori freehold land and (b) it is desirable that the land become Maori freehold land having regard to the history of the land, and to the identity of the owners and their personal association with the land.
The Maori Appellate Court decided in 2000 that (a) such an application could be made by someone who will inherit – they do not have to be already registered on the title as an owner; and (b) therefore there does not need to be a grant of administration before any such application can be made. (Whaanga – Mahia Township… [2000] NZMAC 5)
One or more of those beneficiaries (the people who will inherit) can then also apply to the Maori Land Court for a succession order.
Although the land is now Maori freehold land because of the status order, the rights to succession are still decided according to the land’s status (general land) when your loved one died.
Note – if there is a mortgage on the land, that will need to be discharged. Otherwise you need the written consent of the mortgagee (the lender or bank) before changing the status of the land to Maori freehold land.
Keep the land as general land – and still avoid the need for a transmission or transfer
If letters of administration or probate are still needed anyway, or if there is some reason why it is not appropriate to change the status of the land to Maori freehold land, you can still use the Maori Land Court to avoid the need for a transmission and transfer, if your loved one was Maori.
The Maori Land Court can vest your loved one’s general land into the names of the executor/administrator/s without requiring a transmission to be registered. That application must be made by the executor/administrator/s. (See Te Ture Whenua Maori Act 1993 s111.)
The Maori Land Court can also vest general land into the names of the beneficiaries – those who inherit under the will or according to the law of intestacy (if there is no will) – without requiring a transfer to be registered. Again, this application must be made by the executor/administrator/s. (See Te Ture Whenua Maori Act 1993 s111.)
The order by the Maori Land Court is then recorded on the general land register. There is no fee for this.
However, the Maori Land Court cannot vest general land into the names of anyone else, even if that has been agreed. The power under section 111 extends only to vesting it into the names of those entitled under the will or intestacy.
How to get general land to someone else – such as a whanau trust
If general land is to go to someone else, including a whanau trust, that can be done by a transfer under the general land system, in the same way as for land owned by someone who is not a Maori.
It can, however, also be done by the Maori Land Court if the status of the land is changed from general land to Maori freehold land (see above).
How long does it take?
If you use the land transfer system (transmission/transfer), it can be done in a week or two – depending on how long it takes you (a) to provide the initial information and then (b) to get the paperwork signed and witnessed and sent back to us; and (c) pay our invoice. The online registration is usually confirmed instantly when Kiwilaw completes the online edealing. However, getting probate or letters of administration takes at least 12 weeks at present (April 2023), and you need that before you do anything else.
If you use the Maori Land Court, you need to complete your own application form/s, wait for the application to be processed by the court registry and notified, wait for the order/s to be made (which can be done by a court registrar without a court hearing, if nobody objects and the application is uncomplicated), and wait for the order/s to be issued by the Maori Land Court registry and also sent to Land Information New Zealand for registration. The Maori Land Court filing fee is $20 (status order) and $60 (succession order). Processing time is probably a few weeks.
More information: article by Cheryl Simes in Property Lawyer (March 2023). View/download here.
Cheryl Simes
24 January 2023 (updated 27 April 2023)