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Wills - What does having a Will mean and what happens when people die without one?

By Gibson Sheat

Wills - What does having a Will mean and what happens when people die without one?

A will is a legal document that records how you want your property and care for your dependants managed after you die. It is arguably the most important document you will ever sign.

Generally, a will includes (among other things):

  • The appointment of trusted members of your family, close friends or professionals to administer your estate (”the executors”);
  • Provision for your dependants such as your children, grandchildren or partner (”the beneficiaries”).
  • The recipients of your personal belongings;
  • The appointment of guardians for young children;
  • Directions for debts owing by you to be repaid or loans provided by you to be forgiven;
  • Specific gifts to individuals or donations to charities; and
  • Your requested funeral arrangements.

We strongly suggest seeking legal advice when preparing a will. A well drafted will can reduce emotional and financial strain for your loved ones after you pass away. Additionally, there are certain people who may be eligible to claim against your estate if they believe they have not received adequate provision under your will. Seeking proper legal advice can ensure your intentions are accurately recorded and enables you to discuss options for reducing the likelihood of a successful claim against your estate.

If your circumstances or wishes change, you can redraft your entire will or create a codicil which is a separate binding document, read together with your will. Certain events may revoke some or all of your will automatically, including entering a marriage or civil union, or the dissolution of your marriage or civil union.

Accordingly, you should review your will if your relationship status changes. You should also review your will if you have children, buy property, settle a trust, change your name, or your personal circumstances or those of your executors or beneficiaries change. It is a good idea to review your will every five years.

Dying without a will is known as dying ‘intestate’. A will allows you to appoint trusted personal representatives to administer your estate as executors. However, if there is no will, the court appoints a personal representative such as a family member or lawyer. They are described as the administrator of your estate. The person who stands to benefit most from the estate is entitled to apply to be administrator. However, if that person does not wish to act another can be appointed by the High Court. Your administrator must distribute your estate in accordance with the Administration Act 1969.

This means that if the total value of your estate is above $15,000 (including KiwiSaver, bank accounts, property and investments held in your sole name, but excluding student loan debt which is cleared at death), the Administration Act 1969 determines how your property is to be distributed, usually to a surviving spouse and family members in specified proportions.. This may not align with your wishes and can result in disputes over your estate. This process is more time consuming, costly and complicated than administering a valid will.

Every adult should have a valid, up-to-date will to protect loved ones and ensure that property is dealt with in accordance with their wishes. We strongly recommend you seek legal advice when preparing a will, and ensure you review it every five years.