Where There is a Will There is a (Better) Way

First, do I need a will?

Most people who own property or have children need a will.  By creating a will, you can be clear about who receives your assets.  You can decide who gets what, how much and when.  You can nominate who will care for your children.

It is a much easier process for your loved ones to obtain probate (if necessary) and have access to your assets if you have a will.

It is particularly important to have a will when you marry or enter into a civil union or de facto relationship, or when you or your partner have children.  It is also important when you have ended a relationship.  If you have a new relationship, blended family or children from a previous relationship, you need to be advised of the competing claims and your legal obligations.  If your will isn’t prepared correctly, your estate could be fighting claims for a long time.  Litigation costs can quickly diminish an estate.

A will may not be essential if you have a partner, have only jointly owned property and have no children.  Unless you both die.  If you jointly own all of your property with someone, you will still need a will if you both die together or consecutively.

Even if you don’t own major assets in your sole name, you can quite quickly build up possessions that can have monetary or sentimental value to you and to others. You may have some money in a savings account, KiwiSaver, a car, furniture and household items, a good stereo or home entertainment system, a life insurance policy, some jewellry etc.  A will allows you to decide what will go to whom, even if your possessions have sentimental rather than financial value.

Most parents know they should appoint a guardian for their children under their will but get stuck on who should be guardian because they think the children must live with the guardian.  However, children do not have to live with the guardian.  The guardian is responsible for making the key decisions about the upbringing of the child like where they live or go to school but doesn’t necessarily have day to day care.  You just need to choose someone you trust to make this decision.  It is better to have someone nominated now than putting off your will while you think of someone.

Secondly, what happens if you don’t have a will?

If you die without a will, this is called dying “intestate”.

Generally if you die intestate, the process for dealing with your assets after you die is complex, expensive and more time consuming than if you had a will in place.  Someone needs to be appointed as administrator and a different process called letters of administration needs to be followed.  If there are any disagreements between family members or nobody steps up to act, this can cause delays and cost in your estate being administered.

If you die intestate, the Administration Act specifies how your property will be distributed.  The Act is very specific and there is no discretion.  For example if you die leaving a qualifying partner and no children, then your partner gets $155,000 and then 2/3 of your remaining estate and your parents get 1/3 of your remaining estate.  This may not be what you would have wished or what your family wants, and it could create tension or conflict within your family or between families.  If there are no relatives in the categories listed in the Administration Act, then your estate goes to the State.  Nobody wants that.

Thirdly, DIY wills – do I need a lawyer?

Wills are technical and have unusual requirements that do not apply to other documents.  The witnessing requirements are unique to wills and there are some innocent acts that can create problems later, such as stapling and unstapling the will, stains on the will and hand-written changes.  If the will needs to be validated, this is a court case that comes with effort, cost and time.  It delays the distribution of the will.

Some statutes (such as the Property (Relationships) Act, Family Protection Act and the Law Reform (Testamentary Promises) Act) allow some people to challenge a will. It is important to get legal advice to minimise the chances of your will being challenged.  It can involve significant cost and effort if someone else makes a claim against the estate.

Wills can go missing or be destroyed in a fire.  We have had situations where family have ransacked the house after someone dies and a will kept in a drawer or safe has conveniently gone missing.  If you prepare a will with a lawyer, there will be electronic copies, file notes, and the original is kept in a deeds room for safekeeping.

Obviously we think it is important that you have a will.  At the end of the day, having an expert prepare your will could save your relatives the grief and expense of you having an invalid will or none at all.  It is the ultimate gift for your family to leave a will that sets out your clear intentions.

We make it as easy as possible for you to prepare a will.  We can take your instructions by phone, AV, email or in person.  If you would like to get your affairs in order or if you have any questions, give us a call.