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It’s more common than you might think for beneficiaries to die either before, or shortly after, the person whose estate they are meant to inherit from.
The law has clear rules about who receives what — but the rules change depending on whether there is a will, and on the exact timing of deaths.
This article explains two common situations in simple terms, using examples to make the rules easier to follow.
Scenario 1 — A Will Leaves Everything “To My Children”
A will may contain a simple clause:
“I give my estate to my children in equal shares.”
But what happens if one or more children die before the will-maker? And what if others die after the will-maker, but before probate is granted?
New Zealand’s Wills Act section 23 has a built-in rule that covers this even if the will itself is silent. (ONLY for children, not for siblings, nieces or nephews, etc. It’s best practice to spell out in the will who gets the share of someone who dies before the will-maker.).
The Rule (Plain English)
- If a child dies before the will-maker → that child’s own children (the will-maker’s grandchildren) receive their parent’s share.
- If a child dies after the will-maker, even if they die before probate → their share goes to their own estate.
- Probate timing does not matter.
- What matters is whether the child outlived the will-maker.
No shares “fall back into the pot”. No redistribution among surviving siblings.
Each child’s share is treated separately.
Example: Mereana and Her Six Children
Mereana has six adult children: A, B, C, D, E, F.
Her will simply leaves everything “to my children in equal shares”.
Before Mereana dies
- A dies, leaving two children.
- B dies, leaving one child.
- C–F are still alive.
Mereana dies
Children C, D, E, F survive her.
After Mereana’s death (but before probate)
- C dies suddenly.
- D dies a few months later.
- E and F remain alive.
Who ends up with the estate?
- A’s children share A’s 1/6.
- B’s child receives B’s 1/6.
- C’s 1/6 goes to C’s estate.
- D’s 1/6 goes to D’s estate.
- E and F each get their own 1/6.
Even though C and D died before probate, they survived Mereana — and that is what counts.
Key message:
- Children who died earlier → their children inherit.
- Children who died later → their estate inherits.
- Probate timing is irrelevant.
HOWEVER – if the will said ‘siblings’ instead of ‘children’, the share of a sibling who died before Mereana would go back into the pot, unless the will said otherwise. The share of a sibling who died after Mereana would go to that sibling ‘s estate.
Scenario 2 — Dying Without a Will: No Partner, No Children
In an intestacy (no will), the people who inherit are set by the Administration Act. This can lead to results that surprise families — especially where step-parents or blended families are involved.
Let’s look at a common situation.
The Rule (Plain English)
If someone dies without a will, and leaves:
- no partner, and
- no children,
their estate goes to their parents.
If one parent has already died, the entire estate goes to the surviving parent.
A step-parent is not a legal parent for intestacy purposes.
And importantly:
If a parent survives the deceased even briefly, their entitlement vests immediately. If that parent dies soon after, the inheritance becomes part of the parent’s estate — even if they never applied for administration.
Example: Tama, Hemi, and Rita
Tama, aged 40, dies suddenly without a will.
He leaves:
- no partner
- no children
- his mother (Mere) already deceased
- his father (Hemi) alive
- his stepmother (Rita) alive
Who inherits Tama’s estate?
Under intestacy law, Tama’s estate goes to his father Hemi — because Hemi is the surviving parent.
But then Hemi dies before doing the paperwork…
Hemi dies two months later.
He never applied for letters of administration for Tama’s estate.
Does that mean Tama’s estate has to go to someone else now?
Does it revert to siblings?
Does the stepmother inherit directly?
No.
Why?
Because Hemi inherited Tama’s estate instantly, at the moment Tama died.
His entitlement vested immediately.
So when Hemi later dies, Tama’s estate simply becomes part of Hemi’s estate.
Who actually sorts this out?
Hemi left a will naming his nephew Rawiri as executor.
Rawiri must now:
- Apply for probate of Hemi’s will.
- Then, as Hemi’s executor, apply for:
Letters of Administration for Tama’s estate “for the benefit of the estate of Hemi.”
Rawiri then collects Tama’s assets and transfers them into Hemi’s estate — and distributes Hemi’s estate in the usual way.
Does the stepmother (Rita) get anything?
Not from Tama’s estate.
She may inherit from Hemi’s estate if:
- Hemi left her a gift in his will, or
- she qualifies under Hemi’s intestacy (if Hemi did not leave a will – his surviving spouse then takes priority).
But she has no direct claim on Tama’s estate.
Estate goes to the surviving parent.
If the surviving parent dies before applying for administration, their estate inherits.
Their executor/administrator must apply for the deceased child’s letters of administration “for the benefit of” the parent’s estate.
Step-parents do not inherit stepchildren’s estates unless they inherit indirectly through the surviving parent’s estate.
A Note About Relationship What About Relationship Property — Could Rita Claim Any Share?
No.
In this example, Hemi died very soon after Tama and before doing anything with Tama’s inheritance.
Because of that:
- The inheritance remained Hemi’s separate property under relationship property law.
- It was never mixed with joint assets or used for relationship purposes.
- Therefore, Rita cannot claim a share of Tama’s inheritance by choosing a relationship property division (Option B).
If Rita receives anything, it will be only through Hemi’s estate — either under his will or his own intestacy — not through Tama’s estate and not through relationship property rules.
In Summary
Scenario 1 — Will → “My children”:
- Children who died before the will-maker → their children inherit.
- Children who survived the will-maker but die later → their estate inherits their share.
- Shares are never redistributed because someone dies before probate.
Scenario 2 — Intestacy (no partner, no children):
- Estate goes to the surviving parent.
- If the surviving parent dies before applying for administration, their estate inherits.
- Their executor/administrator must apply for the deceased child’s letters of administration “for the benefit of” the parent’s estate.
- Step-parents do not inherit stepchildren’s estates unless they inherit indirectly through the surviving parent’s estate.
How Kiwilaw can help
Kiwilaw can help explain who gets what, according to the law.
Kiwilaw can help Rawiri apply for probate of Hemi’s will.
Kiwilaw can help Rawiri apply for letters of administration of Tama’s estate.
If Rawiri (executor named in Hemi’s will) will not act, Kiwilaw can help Hemi sign a ‘renunciation’. If the will has no backup executior, Kiwilaw can then help one of Hemi’s beneficiaries to apply for ‘letters of administration with will annexed’.
If Hemi doesn’t leave a will, Kiwilaw can help Rita apply for letters of administration of Hemi’s estate, and then for letters of administration of Tama’s estate.
Cheryl Simes – 30 November 2025
(Image created by Artistly. No resemblance to any humans is intended.)
