Died Without a Will in NZ: What Happens to the Estate

When someone dies without a valid will in New Zealand, the estate is declared intestate. There is no executor, no named beneficiaries, and no documented expression of the deceased's wishes. Instead, a strict set of rules under the Administration Act 1969 dictates who inherits what — and those rules frequently produce outcomes the deceased would not have chosen.

Understanding intestacy is urgent for families of the deceased, because a significant proportion of estates in New Zealand arrive at this situation. The absence of a will does not make an estate simple to administer — it frequently makes it more complex and more expensive.

What Intestacy Means Legally

Intestacy is the legal status of a person who dies without a valid will (or whose will is entirely revoked or found invalid). In intestacy:

• There is no executor — executors are named in wills
• No one has immediate authority over the estate
• The distribution of the estate is governed by statute, not by the deceased's wishes
• The closest eligible relative must apply to the High Court to be appointed as an administrator by obtaining Letters of Administration
• The administrator has the same practical role as an executor, but their authority comes from the court appointment rather than from a will

Letters of Administration are applied for through the High Court of New Zealand. The filing fee is $269 — the same as a Grant of Probate. The application requires drafting an affidavit confirming the intestacy and the administrator's relationship to the deceased, along with a comprehensive inventory of estate assets. Legal assistance is strongly recommended for this process.

Who Inherits Under New Zealand Intestacy Rules

The Administration Act 1969 establishes a hierarchical formula for distributing intestate estates. The formula prioritizes different relatives in a fixed order.

If a spouse or de facto partner survives:

The surviving spouse or de facto partner is the primary beneficiary. However, the extent of their inheritance depends on whether there are also surviving children.

Scenario 1: Surviving spouse, no surviving children The surviving spouse inherits the entire estate. This is the most straightforward intestacy outcome.

Scenario 2: Surviving spouse and surviving children The surviving spouse does not automatically inherit everything. Under the current rules:

• The spouse receives all personal chattels (furniture, vehicles, household items, personal effects)
• The spouse receives a prescribed initial amount of $155,000 from the remaining estate
• The spouse receives a one-third share of the residue remaining after the $155,000 is paid
• The remaining two-thirds of the residue is divided equally among the surviving children

This outcome surprises many surviving spouses who assumed they would receive the full estate. A surviving spouse with three adult children from a second marriage who did not have their own will may discover that two-thirds of the residue — potentially including substantial KiwiSaver or investment assets — passes to children who have their own financial independence, rather than remaining with the surviving spouse who needs it to live.

Scenario 3: No surviving spouse, surviving children The estate is divided equally among the surviving children.

Scenario 4: No spouse, no children The estate passes to the deceased's parents, or if neither parent survives, to the deceased's siblings, then nieces and nephews, then more remote relatives in a defined order. If no qualifying relative exists, the estate ultimately passes to the Crown.

De Facto Relationships: An Important Distinction

New Zealand law recognizes de facto partners in intestacy, but there is a threshold. A de facto partner who has lived with the deceased for at least three years is treated similarly to a spouse under intestacy law. Partners of shorter duration may have weaker claims under intestacy but may still have claims under the Property (Relationships) Act 1976 or Family Protection Act 1955 — this requires legal advice specific to the circumstances.

Children From Previous Relationships

Intestacy can create conflict in blended families. If the deceased had children from a previous relationship, those children are entitled to their share of the residue under the intestacy formula. A surviving spouse from a second marriage cannot use intestacy to exclude children from a prior relationship.

This is one of the most common scenarios in which the intestacy formula produces a result that no one in the family anticipated and that creates significant family conflict. An estate that might have passed simply to the second spouse under a properly drafted will instead becomes a contested distribution requiring legal intervention.

The Role of the Administrator

The appointed administrator has the same responsibilities as an executor:

• Securing and inventorying all estate assets
• Notifying all agencies, banks, and financial institutions of the death
• Applying for Letters of Administration from the High Court
• Settling all debts, taxes, and funeral expenses
• Distributing the remaining estate according to the intestacy formula

Who can apply to be administrator? The administrator is typically the closest surviving relative who is willing and eligible to act. The hierarchy roughly follows: surviving spouse or de facto partner → surviving adult children → surviving parents → surviving siblings. Courts prefer to appoint a person who is also a beneficiary, as this creates an alignment of interests.

If multiple relatives contest who should be appointed administrator, or if the closest relative is unable to act (due to age, incapacity, or overseas residence), the Public Trust can be appointed as administrator. The Public Trust charges fees for this service — typically hourly rates or a percentage of the estate value — so it is generally used when family administration is not feasible.

The First 30 Days: What to Do Without a Will

The absence of a will does not mean the estate is at a standstill, but it does mean no one has legal authority yet. In the first 30 days:

1. Secure all estate assets — prevent unauthorized access to bank accounts or removal of property. Inform banks of the death so accounts are frozen.
2. Determine which assets require formal administration — assets under $40,000 per institution can still be accessed via statutory declaration even in an intestate estate, as long as the distributing party signs the declaration in good faith.
3. Assess whether probate / Letters of Administration is required — if the estate includes real property or bank/KiwiSaver balances over $40,000, formal court authority is needed.
4. Identify a willing administrator — discuss with family who will apply for Letters of Administration.
5. Engage a solicitor — intestate estates are more complex than testate estates, and mistakes in administering them expose the administrator to personal liability.

Survivor Benefits Are Not Affected by Intestacy

An important distinction: the deceased's intestacy does not affect the surviving spouse's entitlement to government survivor benefits. ACC benefits, Work and Income grants, Veterans' Affairs pensions, and NZ Superannuation transitions are all based on the survivor's own entitlement and relationship to the deceased — they are not distributed through the estate. Apply for these separately and immediately, regardless of the will situation.

The New Zealand Survivor Benefits Navigator covers the intestacy process in detail, including the Letters of Administration application steps, the Administration Act distribution formula with worked examples, and how to handle intestate estates where assets are under the $40,000 informal administration threshold.

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