Probate – do it yourself? or do you use the solicitor who holds the will? or not do it at all, if you hold ‘power of attorney’? (What is ‘probate’, anyway?)

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Registrar John Earles runs the Probate Unit of the High Court. He is not keen on people taking a DIY approach to probate applications.  It’s too easy for them to get things wrong, and they expect advice from his staff which his staff are not allowed to provide.

I learnt this when I phoned to ask him whether the Ministry of Justice had any plans to automate the probate-application system. (I didn’t want to put time and effort into developing my own probate service if it was going to be gazumped by a bureaucratic initiative.)

He thought automation would be too difficult. He knew of no such plans.

Ah well, that’s a consolation.

‘Probate’ is the technical name for the piece of paper issued by the High Court to authorise the executor/s to administer a will, after the will-maker has died.  It comes from the Latin for ‘to prove’. The executor/s have to ‘prove’ to the High Court’s satisfaction that the will is valid, the will-maker is dead, that they are the executor/s named in the will, and that they are willing and able to fulfil their duties as executors.

Once they have located and brought in the assets of the deceased, and paid any debts of the estate, they become ‘trustees’ of the estate until it is finally distributed to the beneficiaries.

Even if an executor holds the ‘power of attorney’ for the person who has died, they will still have to apply for probate (assuming the willmaker owns assets that require probate). The power of attorney lapses when the donor of that power dies.

Back to DIY probate applications….

They are not impossible.

Often the trickiest part of a probate application is the exhibit note that has to be on the will.  Literally ON the will.

Until relatively recently, law firms would still use a typewriter to add the exhibit note, because it had to be typed onto the will itself. The ORIGINAL will. (And you couldn’t unstaple the original will and feed it through a printer, even if you managed to set it up to print the exhibit note in the right place so it would not obscure the text or signatures, because the staple holes would create a separate problem, not to mention the risk of the printer massacring the original will.)

Now a sticky label is acceptable.  Or a handwritten exhibit note.

Registrar Earles told me that it would not be acceptable to staple a separate sheet of paper (bearing the exhibit note) to the original will, even though this is now accepted practice for exhibits to affidavits in general. (I have my doubts about that, and will follow it up a little further down the track.)

The wording of the exhibit note is its own challenge.  Or exhibit notes, if there is more than one executor and those executors won’t be swearing/affirming the affidavit at the same time and place.

Staples, paper clips, file clips, pins…  If they encounter an original will, at ANY time before that will reaches the High Court registry with the probate application, a special affidavit may be needed, to confirm that no extra document was ever attached to the will.

There are plenty of other possible complications, with changes of address or name, or executors no longer available, willing or eligible to act, or lost original wills, or indeed if no body was ever found.

It’s those possible complications, and technical details, that make it advisable to use an expert to prepare the application for probate.

That expert does not have to be the solicitor who holds the will.  If a more cost-effective option exists, it is okay to use it.

It was traditional that the solicitor (or firm) who held the will would have the ‘right’ to administer the estate, and to charge significant legal fees for doing so.  It was impolite for anyone to suggest otherwise.

That was why law firms often provided a ‘free wills’ service, as too did the Public Trust. Drafting the will was free, but recompensed when the willpayer died and the firm was able to charge for the estate administration.

It was better still if the solicitor or law firm was named as an executor. That pretty well guaranteed that the firm would get the fees for the estate administration (including probate).

And the fees were significant. A generation or two ago, they were set by a standard scale, and increased according to the value of the estate.  (Alas, that was before I entered legal practice. Older colleagues reminisced fondly about the days of ‘the scale’. I think the scale was abolished in the 1970s, but have not checked. If you know, please comment.)

Times have changed.

There is no such ‘right’ to administer a will because the firm holds it.  (There never was.)

The executor/s have a duty to be financially prudent, and businesslike, in obtaining probate, getting in the estate’s assets, paying the estate’s debts, doing any other necessary administration, making distribution/s to beneficiaries, and (if required) providing full accounts to the High Court.

So, if the executor/s can reasonably do some of this work themselves, they may. (If they are lawyers or accountants, they may also charge fees for doing so.)

If the executor/s need assistance, they are free to choose who to use.

A solicitor should be able to provide information about likely fees for different aspects of estate administration. Executors may wish to compare that pricing information with the fees charged by the Public Trust or Perpetual Guardian, two major trustee companies. And, of course, – for the application for probate (which is just one part of the ‘estate administration’) – with Kiwilaw’s service

In many instances, it makes sense to stay with the solicitor who prepared the will, holds the will, knows the family, and knows what the will-maker wanted and intended.

Except, perhaps, for the application for probate itself. That does not require knowledge of the family or the will-maker, only straight-forward factual information from the executors.

Check the fees first.  If they cannot match Kiwilaw, email us. 

Cheryl Simes

26 June 2018