Your Guide to Making a Will
Making a Will can be confronting to think about for many reasons. But putting in the time to create one now will make things much easier and less stressful for your family when you pass away. A Will is a way to ensure your family are supported, and your property distributed, in the way you’d want.
In this guide we’ll be answering key questions about Wills, including:
why you should make one,
things you’ll need to consider,
laws that impact Wills,
and how to make a Will.
Why should I make a Will?
Passing away without a Will is known as “dying intestate”. It means the legal process to gain authority to administer your estate (any material or financial assets you own) is significantly longer and more costly. If you pass away without a Will the law will dictate who gets your property – and it may not be who you would necessarily want to receive it.
There are other very important practical and family-based reasons to make a Will.
To decide what will happen to your property: Property can include cash in bank accounts, a car, jewellery, KiwiSaver, residential or commercial property, business or land, interests in Māori land, investments, or savings. Your Will can include any special instructions or conditions for your assets. You might also wish to leave a “life interest” to someone in a residential property you own. This means they can live in the property for the remainder of their lifetime.
To name guardians for your children: You can name in your Will the person or people you want to be responsible for the upbringing and care of your children. These people will become legal guardians. They will not necessarily take on the role of day-to-day care for the children but will be responsible for making decisions around their healthcare, education, culture and providing financially for them.
To establish funeral and burial wishes: You may want to set out any funeral or burial instructions. These can be very helpful for your family during a difficult and emotional time.
To provide for special gifts: You can specify who you would like to inherit certain personal items (e.g. jewellery or family heirlooms), and any gifts to charity.
When should I make a Will?
Every adult should have a Will, and regularly review it to ensure its provisions match their current situation. You can make a Will at any time, and there’s no set amount of assets or money you need to have to make one.
We recommend making a Will now. Even if you don’t own any major assets, you can quickly build up possessions. A Will allows you to decide what happens to the items you own, whether they are of financial or sentimental value.
How is a Will used when someone passes away?
Your Will must name at least one Executor (see below for more on choosing your Executor). The Executor is responsible for carrying out all the wishes in your Will, distributing your Estate, repaying any costs and debts from this, as well as the general tidying and closing of your affairs. Your Estate includes personal possessions, money in bank accounts, any land or property, proceeds from insurance policies, and shares.
The Executor applies to the High Court for what’s called Probate. Probate is a legal certification to confirm the Will is valid. This gives the Executor authority wherever needed (such as with a bank, trust, Government agency or lawyer) to distribute the person’s Estate and administer their affairs.
Applying for probate requires the preparation of legal documents. The lawyer of the deceased person (or the Executor’s lawyer) will support the Executor with this. If the total estate is valued at under $15,000, you don’t usually need to apply for probate to complete these tasks.
Who should I choose as an Executor of my Will?
This is an important decision, as there are financial and practical responsibilities that come with being an Executor, some which are carried out over a long period of time. They must be at least 20 years old.
It’s common to choose your spouse or partner, parents, adult children, a sibling, or a trusted family friend. You can also appoint a professional such as your lawyer to take this role.
The Executor’s responsibilities include:
Overall financial management of your estate.
Working with your lawyer and ensuring the legal process is followed, such as applying for probate. If the Will is contested, they’ll also need to be part of that process.
Managing benefits for children or grandchildren until they reach a certain age.
Managing any Testamentary or Life Interest Trusts. These are types of Trusts that are created by the Will, to hold part of the person’s estate for a particular time. An example could be when the estate is left to children under 18.
What you’ll need to include in your Will:
Depending on your personal situation, Wills can be quite short and simple or more detailed. However, there are a few items that must be included:
The name of your Executor/s: These are the people responsible for administering your estate by carrying out the wishes in your Will.
Your Beneficiaries: These are the people who will inherit your estate, often your immediate family. You can name any person, organisation, or Family Trust as a beneficiary. However, should you decide to leave out any of your dependents, they may be able to challenge your Will.
A vesting age: If any of your beneficiaries are minors, you’ll need to state an age they must reach before they can receive their inheritance.
How does the Family Protection Act affect my Will?
If you do not leave a fair provision for certain close family members in your Will, the Family Protection Act gives those people the opportunity to make a claim against your Will. It’s important to discuss your family circumstances with us to ensure the important people in your life are adequately accounted for in your Will.
How does the Property (Relationships) Act affect my Will?
Under New Zealand law when a married or de-facto partner passes away, the death is treated the same as a separation. The surviving partner has the option of either applying to the court for an equal division of relationship property, or accepting the provision made for them in the deceased partner’s will. The option that’s best for you will depend on your personal circumstances.
If you are the surviving partner, it’s important to gain prompt legal advice on this after your partner passes away, as there are certain timeframes to meet.
How do I get started with making a Will?
For most people, making a Will is usually a very straightforward process.
What to Expect
At Apogee Legal we start with talking you through what you’ll legally need to include in your Will, such as naming your Executor and beneficiaries, and other optional aspects such as naming guardians, special gifts, or funeral and burial wishes. You might like to take some time to think these aspects over or discuss with a trusted person or family.
We’ll then discuss your personal situation, how any significant property or assets are owned, and talk about the provisions you’d like to make in your Will. We can provide legal advice and options designed to achieve the outcomes you want.
We’ll draft your Will and arrange for it to be signed and witnessed in the required manner. Your Will can be kept with us for safe keeping.
Reviewing and updating your Will:
Once you have made a Will, there are times it may need to be reviewed or updated. Important times to consider a review include:
Marriage or family and relationship changes. Your Will is automatically cancelled if you get married or enter into a civil union. However, if you intend to marry in the near future it is possible to keep your Will valid – you’ll need to let us know so we can make sure this is accounted for in your Will.
If the executor or a significant beneficiary named in your Will dies.
If your assets or debts increase significantly.
Although it might be uncomfortable to think about, we know that many of our clients gain invaluable peace of mind knowing that their affairs are organised. Having an up-to-date Will is an important step to provide for your family and leave the legacy you want.
If you’d like to make a new Will or review your current Will, please get in touch with one of our friendly team.