Dying Without a Will: Intestacy Rules in New Zealand
When a person in New Zealand dies without leaving a valid will, or leaves a will that does not fully dispose of all their property, they are said to have died intestate. In such cases, the deceased person's property, known as their estate, is distributed according to specific rules set out in New Zealand law rather than their personal wishes [Source: Administration Act 1969, s 77]. These rules determine who inherits and in what proportion.
The Administration Act 1969
The primary legislation governing intestacy in New Zealand is the Administration Act 1969. This Act outlines the legal framework for the administration of estates, including those of individuals who die intestate. When there is no will, a person, typically a close relative, must apply to the High Court to be appointed as an administrator of the estate. An administrator is a person appointed by the High Court to manage the estate of someone who died intestate [Source: Administration Act 1969, s 6].
Order of Distribution for Intestate Estates
The Administration Act 1969 sets out a strict hierarchy for the distribution of an intestate estate. The order of beneficiaries and their respective shares depends on which family members survive the deceased [Source: Administration Act 1969, s 77 and First Schedule, Part 1].
1. Surviving Partner (Spouse, Civil Union Partner, or De Facto Partner)
Partner refers to a person who was married to the deceased, in a civil union with the deceased, or in a de facto relationship with the deceased at the time of their death [Source: Administration Act 1969, s 2(1)].
If there are no surviving children (or other descendants), parents, or siblings: The surviving partner is entitled to the whole of the estate [Source: Administration Act 1969, First Schedule, Part 1, paragraph 1(a)].
If there are surviving children (or other descendants): The surviving partner is entitled to:
- All personal chattels (moveable property such as furniture, household effects, motor vehicles, and jewellery, but generally excluding property used for business purposes) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 1(b)].
- A statutory legacy of $155,000, plus interest from the date of death until payment [Source: Administration Act 1969, First Schedule, Part 1, paragraph 1(c); Administration (Prescribed Amount) Order 2021, cl 4].
- One-third of the remaining estate (the residue after personal chattels and the statutory legacy have been distributed) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 1(d)].
If there are no surviving children (or other descendants), but there are surviving parents or siblings: The surviving partner is entitled to:
- All personal chattels [Source: Administration Act 1969, First Schedule, Part 1, paragraph 2(a)].
- A statutory legacy of $155,000, plus interest from the date of death until payment [Source: Administration Act 1969, First Schedule, Part 1, paragraph 2(b); Administration (Prescribed Amount) Order 2021, cl 4].
- Two-thirds of the remaining estate (the residue after personal chattels and the statutory legacy have been distributed) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 2(c)].
2. Surviving Children (or Other Descendants)
Children include all biological children, adopted children [Source: Adoption Act 1955, s 16], and generally, children born outside of marriage. Issue refers to direct descendants, such as children, grandchildren, and great-grandchildren.
If there is no surviving partner: The children (or their issue, if a child has died leaving descendants) are entitled to the whole of the estate in equal shares [Source: Administration Act 1969, First Schedule, Part 1, paragraph 3].
If there is a surviving partner: The children (or their issue) are entitled to two-thirds of the remaining estate (the residue after the partner has received their share of personal chattels, statutory legacy, and one-third of the residue) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 1(e)].
3. Surviving Parents
If there is no surviving partner or children (or other descendants): The surviving parents are entitled to the whole of the estate in equal shares [Source: Administration Act 1969, First Schedule, Part 1, paragraph 4].
If there is a surviving partner but no children (or other descendants): The surviving parents are entitled to one-third of the remaining estate (the residue after the partner has received their share of personal chattels, statutory legacy, and two-thirds of the residue) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 2(d)].
4. Surviving Siblings
If there is no surviving partner, children (or other descendants), or parents: The surviving siblings (or their issue, if a sibling has died leaving descendants) are entitled to the whole of the estate in equal shares [Source: Administration Act 1969, First Schedule, Part 1, paragraph 5].
If there is a surviving partner but no children (or other descendants) or parents: The surviving siblings (or their issue) are entitled to one-third of the remaining estate (the residue after the partner has received their share of personal chattels, statutory legacy, and two-thirds of the residue) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 2(d)].
5. More Distant Relatives
If none of the above categories of relatives exist, the estate is distributed to more distant relatives in a specified order:
- Grandparents [Source: Administration Act 1969, First Schedule, Part 1, paragraph 6].
- Uncles and aunts (or their issue) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 7].
6. The Crown
If no eligible relatives can be found under the Administration Act 1969, the entire estate passes to the Crown (the government) [Source: Administration Act 1969, First Schedule, Part 1, paragraph 8].
Special Considerations for De Facto Partners
For a de facto partner to inherit under intestacy rules, they must have been living in a de facto relationship with the deceased for at least 3 years at the date of death [Source: Administration Act 1969, s 2(1)]. Furthermore, they must apply to the High Court for an order confirming their share. This application must generally be made within 12 months of the grant of administration, though the Court may grant leave for later applications in certain circumstances [Source: Administration Act 1969, s 77A(3)].
Administration of Intestate Estates
An administrator, once appointed by the High Court, is legally responsible for gathering the deceased's assets, paying any debts and taxes, and distributing the remaining estate according to the rules of intestacy [Source: Administration Act 1969, Part 2]. This process can be complex and may require legal assistance.
When to Seek Independent Legal Advice
When navigating the complexities of an intestate estate, particularly concerning the appointment of an administrator, the identification of beneficiaries, or the interpretation of the distribution rules, it is highly recommended that individuals seek independent legal advice. Legal professionals can provide guidance on specific situations, help with court applications, and ensure compliance with the Administration Act 1969. This information is not a substitute for legal advice. Individuals can contact a lawyer or their local Community Law Centres for free advice.
Key Resources
- Administration Act 1969: https://www.legislation.govt.nz/act/public/1969/0052/latest/whole.html
- Administration (Prescribed Amount) Order 2021: https://www.legislation.govt.nz/regulation/public/2021/0173/latest/whole.html
- Community Law Centres Aotearoa: https://communitylaw.org.nz/