Wills: Your 3 Options

You have 3 options when it comes to your will:

No will at all
Prepare your own using a will Kit
Prepare your will with help from a lawyer

First, let’s talk about what happens when you don’t have one at all.

1. No Will At All

That’s called dying “intestate”, which means “died without leaving a will”. I’m sorry, but you’ve just piled lots of hassles onto the family you’ve left behind. Not only are they going to have to deal with grieving for your passing, they are also going to suffer the cost, stress and time of a special application to the High Court.

What has the High Court got to do with it?

Because you don’t have a will, your family needs to apply for a special grant to determine two things:

Who will administer the estate
What will happen to the estate

They are even going to have to prove who your children are via multiple government agencies.

Until that process is complete and the High Court has granted letters of administration your assets can not be dealt with. Your family will have to use their own money to finance all this.

The cost, by the way, could be 3 to 5 times more than normal because of all the paperwork, research and applications. If you had a will, this part in the process would be easy for them.

Did you know that if you and your spose (civil union partner / de facto partner) have children together, and you were to die, your spouse doesn’t automatically inherit everything? The rules in place for intestacy surprise a lot of people.

This from LawAccess.govt.nz. Source

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Examples of how property is distributed under the laws of intestacy

Spouse / partner and children – if there’s a spouse, civil union partner, or de facto partner, and also children:
- the spouse or partner takes all the personal chattels, a set amount of $155,000, and one third of the rest, and
- the children take the other two thirds.
No spouse / partner – if there is no spouse, civil union partner, or de facto partner, the deceased’s children take everything in equal shares.
No spouse / partner or children – if there is no spouse, civil union partner, or de facto partner, and no children, the deceased’s parents take everything.
No spouse / partner, children or parents – if there is no spouse, civil union partner or de facto partner, and no children or parents, the deceased’s brothers and sisters take everything in equal shares.
Separation order – if there’s a current separation order from the Family Court, the surviving spouse or civil union partner isn’t entitled to any property under the laws of intestacy. If the couple were living apart but there was no separation order, the rules are the same as if they’d been living together.

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If you would like to distribute your assets in a different way than what’s written in this list, then dying without a will is not for you.

Let’s take a look at what your options are from here.

2. Create Your Own Using A Will Kit

It’s better than having nothing at all, but they can be a bit tricky to fill in correctly without a lawyer to check it for you.

The High Court will examine it anyway. Here are 4 main things The Court is looking for:

That it’s signed properly
That you had “testamentary capacity” when you signed it (easy to prove when you’re dealing with a lawyer, harder to prove when you did it yourself)
The Court looks for pin holes, staple holes and paperclip dents. Why? Because that might mean there was a document attached which is now missing, The Court will have to reject the will.
That the words make sense

The risk here is that your Will will be rejected, and, if that’s the case, your loved ones are back to Step One.

Let’s take a look at what else you could do.

3. Create A Will With Help From A Lawyer

If you can answer "Yes!" to the following 2 questions, then this is the best option for you:

Do you have some idea on how you’d like your assets distributed?
Do you want to save your family time, money and stress?

If you answered "Yes!" to those questions, let's sit down together and I’ll ask you two more very sobering questions:

“If you were to die in the next 12 months, who will get your assets?”
“Who do you trust as executor for your will?”

Choose your executor carefully. Think about any possible conflicts of interest they may have. And just so you know, they get involved immediately. Their first duty upon your death is caring for your body.

Here’s a list of a few more things we’ll cover:

Itemise all your property, assets and liabilities (include intellectual property and personal property, even passwords).
Who will receive that property?
What if they die before you? Who’s the backstop?
What moral duty do you have to your spouse, children, grandchildren etc?
Specify your relationships, present and past.
What promises have you made about your property? E.g. did you promise the lawnmower boy your motorbike one day?
If you have children, who will be their guardians?
What are your burial wishes? Eg your choice of music, venue, burial location.
If you become mentally incapacitated, what are your wishes? (This is called a “living will”).

Whatever you say, goes. And that’s the essence of a will, it is a recording of your wishes that become part of the law when you are not here to say what those wishes are.

What’s Next?

If you don’t have a will yet, I hope you’ll see the benefits of putting one in place.

If you have a will kit version, then it’s great that you’ve taken that step, but if you are concerned that the High Court may reject it for any reason, let us take a look at it for you.

Otherwise, if you’d like to join over 3000 plus clients that we have prepared wills for, give us a call and let’s make an appointment so we can talk it over with you.

Tauranga: (07) 578 8888
Omokoroa: (07) 548 1048