Do you need to write your will?
Save your family stress — contact NZ will expert, Jason Hendriks today to set up an appointment.
12 October, 2011 | Jason Hendriks
If you die without a will or a legally acceptable will, known as ‘dying intestate’, your loved ones will be left with a costly, time consuming and often confusing mess to sort out. Dying without a will means that the Administration Act specifies how your property will be distributed. Your assets may not be divided in the way that you wanted – there are some peculiarities in the Administration Act in regards to how assets are distributed that you may not be aware of.
If you are married or in a de facto relationship, without children, and die without a will, only 2/3 of your estate will go to your spouse/partner – the other 1/3 will go to your parents (if they are living).
If you are married or in a defacto relationship, and have children – your spouse/partner will receive your chattels, the first $155,000 of your estate, and one-third of the remaining estate – but two-thirds of the remaining estate will be put in trust for your children. This has a myriad of implications for your spouse/partner’s ability to manage any assets while the children are minors, and upon turning 20 those children would be entitled to their 2/3 share. Any children over the age of 20 at the time of your death would immediately be entitled to their portion of the estate.
Having a will allows you to control/specify how your assets are divided. It is important to seek legal advice for your will to ensure that it is legally valid, and less likely to be subject to estate claims after your death.
A will also allows you to nominate a person or persons to be appointed ‘testamentary guardians’ – meaning they will have a say in respect to your (minor) children’s care and welfare. If you do not have a will with this provision, guardianship can only be determined by making an application to the court.
When you set up a will, you will decide who to nominate as your executors – the people who will administer your estate after your death. Having this pre-determined takes away confusion and uncertainty for those left behind – and allows everyone to follow a clear, uncomplicated path at a time that can be very distressing.
If you do not have a will the Administration Act sets out the persons entitled to apply to administer your Estate. There is a strict order of priority determined by law as to who may apply for administration and it may well be that you did not want the applicant to be in charge of looking after your affairs after you have passed away. This can also cause problems and delays for potential beneficiaries and claimants who you might have intended to benefit from your estate.
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. Otherwise the trust will owe that money to the beneficiaries of your estate. If you are the settlor/appointor, you can stipulate in your will who to have the power to appoint new trustees and add or remove beneficiaries of the trust.
Making a will is straightforward. A lawyer experienced in Estate matters will be able to ensure that your will is drafted and executed correctly in a relatively short period of time.