Around 1500 people in New Zealand die every year without a will – put off perhaps by the perceived hassle of organising it, the cost or simply not realising the muddy waters left behind if you die “intestate”.
These days families can be complex, meaning previous relationships, children, multiple properties or family trusts all need to be considered when making your will (or else leave your will wide open to be challenged – a stressful process for all involved). It’s also useful to consider non-financial matters, such as who will look after your children and pets, what happens to your treasured personal effects, and your funeral arrangements.
This guide sets out the what, why and how of making a will.
Why do I need a will?
Having no will at all can create a costly and stressful process for those trying to deal with your estate. It’s not quite as simple as just filling in a form either, despite the promises of DIY will kits. A perceived saving setting up your will “on the cheap” today unfortunately often results in greatly increased executor fees down the track – “eating up” the estate.
Working with an experienced life planning legal professional is the most efficient way to create a comprehensive, valid will to give you peace of mind that your loved ones will be able focus on celebrating your life, not dealing with your life admin, when you pass away.
What goes in your will?
Your will details your personal situation, any debts, assets and what should be done with them, instructions for arrangements when you pass away and instructions for administering your estate. It is your chance to expressly state your wishes, although there are laws your will needs to comply with or it can be challenged.
Common terms used in wills
- Assets – Everything you own and/or control, including bank accounts, shares, land, houses which you intend to leave in a will.
- Estate – Everything that a deceased person owns or controls, including debts and liabilities. An estate is simply the value of the assets less the liabilities.
- Will-maker – (formerly known as the “testator”) the person who has made the will.
- Executor – the person or authorised statutory company appointed in a will to administer and distribute the will-maker’s estate according to the instructions in the will. Ideally, a will-maker should appoint someone with common sense and the ability to act in accordance with the will at all times. An executor can also be a beneficiary within the will.
- Beneficiary – a person or legal entity who receives money or other benefits in your will, i.e. the recipient of a particular amount of money or item of property.
- Probate – A High Court order that establishes that a will is valid and gives the executor authority to deal with the estate. Probate is only required when a single asset in the estate is valued at more than $15,000.
Family details and personal situation
Your will should consider:
- your relationship status and the nature of your relationship with your children or other dependents
- the name of your spouse, husband or wife and any children and their ages if they are not adults
- whether you have been in any previous relationships, and
- whether you intend on having any further children.
This is where a will is vital – it lets you specify who receives what from your estate. Under the Administration Act, if you don’t specify who gets want, the law can give your property to someone you never intended to be included. Making a verbal promise to someone before you die is not secure enough – do you want the children fighting over who gets Mum’s rings? How do step-children fit in?
Your will should include:
- full details of what assets you own including assets owned jointly with others or through a partnership or company
- whether any money is owed to you by family members or others
- details of any trust that you have established, and
- details of any significant debts and liabilities.
As a note, any assets owned as joint tenants pass to the survivor regardless of what your will says. This often includes bank accounts, and sometimes real estate. It is important to take these assets into account.
Your will requires you appoint an executor(s) and trustee(s). The executor’s job is to administer the estate (e.g. act as a contact person, apply for probate). Once all of your assets have been realised and the discretionary role of the executor has ceased, the trustee(s) hold the assets on Trust until such time as the assets are distributed in accordance with your will to the beneficiaries. Typically, the same person or people will be both executor and trustee.
When someone passes away without a will, it often takes significant time, effort, and cost to deal with the estate, for example, to:
- establish that there is no will
- establish who can, and will, administer the estate
- establish who the family members are (and therefore, who has a right to inherit under law), and
- prepare court documents to administer the estate.
These costs are significantly reduced for people with a will.
You can appoint anyone as your executor/trustee, and you can appoint more than one, but it’s important to consider your choice carefully. Choose someone responsible, and likely to be well and able to perform the role.
Important non-financial matters can also be dealt with in a will, such as:
- Children: appointing a guardian for children under 18 years
- Unmarried couples living together: If you have been living in a de facto relationship for three years or more and your partner dies without a will, the Property (Relationships) Act 1976 permits you to apply for a division of relationship property. We can advise you about how this law might impact your situation.
- Pets: specifying what will happen to family pets, which can often be overlooked and cause issues. While you can’t leave money to pets as pets are defined as “chattels”, they can be left to someone and you can give money to the person for the purpose of looking after the pet.
- Special funeral requests: leaving wishes on how you want your funeral to be conducted, avoiding the need for your family to make decisions. This can include music to be played and your burial preferences.
Ensuring your will is valid
To be valid, your will must be:
- in writing
- signed at the end by you and two independent witnesses, with all three being present together, and with all three seeing each other sign
- intended by you to take effect as a will, and
- completed when you have legal capacity.
As a matter of good practice, the will-maker and each of the witnesses should also sign the foot of every page. This helps to guard against any suggestion that pages have been inserted in the will after it was signed.
Your will needs to be stored somewhere for safekeeping, and must not be bound by staple, paperclips or anything that leaves a mark on the paper that may suggest a page has been removed by the will. Your lawyer can store your will for you.
What happens if you did without a will, or intestate?
The estate is distributed according to the Administration Act. There is an order of priority for who gets what and how much.
If there is a spouse or partner, but no parents or children:
The spouse receives the entire estate.
If there is a spouse or partner and children:
The spouse receives the personal effects (such as furniture, paintings, homeware), $155,000 (with interest from the date of death) and a third of anything left. Children will receive the remaining two thirds, divided equally between them.
If there are stepchildren or a blended family:
Where there are blended families the situation is more complex. Whether stepchildren are entitled to benefit from an estate will depend on a number of factors including the age of the stepchildren, their relationship to the deceased and whether they relied on the deceased financially.
If there is a spouse or partner and parents, but no children:
The spouse receives the personal effects (such as furniture, paintings, homeware), $155,000 (with interest from the date of death) and two thirds of anything that’s left. The deceased’s parents will receive the remaining third divided equally amongst them.
If there are children but no spouse or partner:
The children receive the entire estate; it will be shared equally among them.
If there is no spouse or partner, no children, but there are surviving parents:
The entire estate is divided equally between the parent or parents.
If there is no spouse or partner, no children, no surviving parents but surviving siblings:
The entire estate is divided equally between the siblings
None of the above:
A genealogist will be engaged to determine next of kin details. If no next of kin are able to be located then everything will be passed over to the NZ Government. Anyone who thought they should have benefited from the estate can apply to the New Zealand Treasury to be considered.
How long will it take?
When there isn’t a will in place, the process of winding up the estate can take a lot longer than if a will is in place. As a guideline, and depending on the complexity of the estate, it can take anywhere from 6 – 24 months to administer the estate.
How often does your will need to be reviewed?
When you get married, separated, divorced or have children, you need to review your will. Getting married automatically renders your will invalid, unless your Will provides otherwise. However, separating or divorcing does not affect the validity of your Will. As a rule, dusting off your will every three years or so is a good idea. If you currently have a DIY will, it’s also a good idea to get it checked by a lawyer to make sure it is current and has been witnessed and stored correctly – if not, it may be invalid.
Our estates and life planning team is highly experienced at preparing and reviewing wills. Please give us a call and we will be happy to discuss your requirements with you.