Why do I need a will?

1 August, 2022 | Kimberley Brown

Everyone should have a will.  You cannot plan when you will die, and unfortunately it often happens all too suddenly.  What you can plan for is how your estate will be administered, and how your assets will be distributed.

Here we set out some of the main reasons why you should have a Will, as well as what might happen if you were to die without one.

So that the things you care about go to the people you care about…

Having a Will that sets out how you want your assets to be divided gives you the best possible control over what happens to your property, your finances, your treasured belongings, and even your beloved pets after your death.  If you die without a will (also referred to as dying ‘intestate’) the Administration Act will determine how your property is to be distributed.

While you might think it obvious who will get what, and that this will happen regardless of whether have a Will, this is far from the truth. In fact, the peculiarities of New Zealand’s law on intestacy could mean your assets are distributed very differently to how you might have intended.

For example:

• If you are married or in a de facto relationship, do not have any children, and die without a Will, your partner will receive your chattels, the first $155,000 of your estate, but only two-thirds of the remainder of your estate – the remaining thirdwill go to your parents (provided they survive you)!
• If you are married or in a de facto relationship and have children – your spouse/partner will receive your chattels, the first $155,000 of your estate, and only one-third of the residuary estate… the remaining two-thirds will go to your children
• If you are separated from your spouse (but not yet divorced), and you die without a Will, the Administration Act still applies.  This is the case whether you have been separated from your spouse for two months, or for two decades.  This means that your spouse would have an automatic right to a significant portion of your estate, even if you haven’t spoken to them for years.  In fact, if there are no children and no surviving parents, your spouse has a right to receive your estate in its entirety.

So that you have control over when your child or children will receive their inheritance…

If your children are minors at your death, and you die without a Will setting out a vesting age, your children’s share will be held on trust until they reach the age of 18.  During that time, your spouse/partner’s ability to manage your children’s share of the estate assets will be restricted.  Upon turning 18, your children will become entitled to receive their share in full, without limitation.  Likewise, any children over the age of 18 at the time of your death would be entitled to their portion of the estate without any limitations.

So that you have control over who administers your estate…

In a Will you can also nominate an executor or executors, being the person or persons who will administer your estate after your death.  This allows you to ensure the role is filled by a person or persons that you trust completely.  Having this position pre-determined also removes confusion and uncertainty for those you leave behind, ensuring a clear, uncomplicated path forward at what will anyway be a distressing time.

If you do not have a valid Will, or if you have not named an executor in your Will, the Administration Act also sets out the persons entitled to apply to administer your Estate. The law stipulates a strict order of priority as to who may apply for administration, and it may well be that someone you never would have named winds up being in charge of looking after your affairs after you pass away. This can also cause problems and delays in distributing your estate, causing stress to potential beneficiaries and claimants who have a right to benefit from your estate.

So that you can name who has a say in the lives of your minor children…

A Will also allows you to nominate a person or persons to be appointed as ‘testamentary guardians’ of your minor children.  The person or persons that you nominate in your Will as ‘guardian(s)’ of your children will have a legal say in your minor children’s care and welfare after your death.  If you do not have a Will including such a provision, any person who should have a say in major decisions about your child’s life will need to make an application to the court to this effect.  In terms of the day-to-day care of your children, the court will also look favourably on an application by the person or persons named as testamentary guardians in your Will, thus simplifying the process and reducing any delays in ensuring your child’s care and welfare needs are certain.

So that your Family Trust matters are left in order…

It is especially important to have a Will if you have a Family Trust.  If there is any debt owed to you by the trust, you can gift the balance of that debt by Will. Otherwise, the trust itself will owe that money to the beneficiaries of your estate.

If you are the settlor/appointor of the Family Trust, you can also stipulate in your Will who is to have the power to appoint new trustees and/or to add or remove beneficiaries of the trust.

So that your next of kin aren’t left with a legal mess to unravel…

If you die without a will (i.e. intestate), or without a legally valid Will, those left behind will be left facing a time-consuming and stressful legal process to administer your estate.  Often times, this will turn out to be a confusing mess that they will need to untangle.

And that’s not to mention the increased costs involved in administering an estate where there is no Will (or no valid Will).  Having a valid Will relieves your loved ones of the additional time and stress involved with an intestacy at a time they will anyway be managing their grief.  In this way, a Will as one final gift that you can leave for your loved ones.

To tick it off your ‘to-do’ list…

Many people put off making a Will, even if they do realise the importance of having one in place.  While it is important to seek legal advice your Will in order to ensure that your Will is legally valid and less likely to be the subject of any claims or estate litigation following your death, making a valid Will is generally straightforward.  .  A lawyer or legal executive experienced in Estate matters will ensure that your Will is prepared and executed correctly, and in a relatively short period of time.

Save your family the stress, hassle and cost – make sure you have a valid and up to date Will today.