A Very Important Document

What happens if you die without a will? (Intestate)

Where there’s no will, your estate will be divided up by Section 77 the Administration Act 1969:

This is in short what will happen:

  • Your spouse or partner gets your personal chattels, the first $155,000 of the estate and one-third of the rest. The other two-thirds goes to your children.
  • If you have no children, your partner gets the personal chattels, the first $155,000 and two-thirds of the rest. Your parents get the other third. Your partner gets the lot if your parents are deceased.
  • If you have children but no partner, the entire estate is left to the children equally.
  • If you have no partner or children, your parents inherit. If your parents are deceased, the entire estate is left to blood relatives or to the Crown if no relatives exist.

Drafting a Will.

Anyone can draft a will, but as with anything in life, this is best left to someone with experience. You can get one drafted by someone with experience or a lawyer/trustee company. A will must also be signed and witnessed. If the proper procedures are not followed, a will may not be valid.

Can you write your own will?

You’re legally entitled to make a will yourself

There are potential downsides to DIY. Experts say home-made wills may create problems if the will-maker’s intentions aren’t clear. Simple errors – for example, the wills not signed or witnessed properly – can also create grounds for challenge.

Your executor

You can choose anyone to be your executor. The person doesn’t have to be a lawyer: they can be a family member or friend. It’s common for people to name a friend or relative and a professional as co-executors (they’ll administer the estate together).

There can be advantages in naming a legal expert as an executor because they can deal with legal matters. Probate (authorisation to administer your estate) will usually need to be obtained from the High Court. Your legal expert can also deal with the transfer of any property.

Keep the following in mind when setting up your will.

Legal issues

Writing a won’t give you the freedom to do what you want. Otago University law professor Nicola Peart says if you overstep your legal rights, the will can be challenged. Don’t rule from the grave.

Adequate provision
The Family Protection Act says you have a moral duty to provide for close family members in your will. If you don’t, they have a right to contest the will because you haven’t made adequate provision for them. Cutting a close family member from your will is extremely difficult to do if they choose to challenge it.

The Law Reform (Testamentary) Promises Act says if you’ve promised someone a reward in your will for their services and don’t keep that promise, they can contest the will. Say you hire a caregiver, telling her you can’t afford to pay her much, but you’ll see her right in your will. If you don’t keep that promise, she may challenge the will.

Significant others
If you’ve been in a relationship for 3 years or more, the Property (Relationships) Act says your partner is entitled to half your relationship property if you separate or die. This applies to married, civil union and de facto couples, including same-sex couples. You can “contract out” by making an agreement with your partner. If you die, your partner has 6 months to either accept what you leave them in your will or claim their share under the Act.

Wills checklist

A will should state the following points:

  • that it’s your last will and revokes all previous wills
  • how you want your estate distributed.
  • who will be your executor?
  • who will be the legal guardians of children under 18 if you and your partner are dead?
  • anything else that’s important to you (such as instructions for your funeral).

Your will must be written and dated. You must sign it in the presence of 2 witnesses who also sign it. They should state they are doing so in your presence and in the presence of each other.

It is not a good idea to let the witnesses, or their partners inherit.

Use plain English: if a lawyer tries to foist a will on you that you can’t understand, insist on a rewrite.

Never physically attach anything to your will. The attachment may leave marks and the court may be concerned that these marks indicate there were other instructions forming part of the will.

Review your will at least every 5 years and update it whenever your circumstances change.

Top 5 tips for wills

1. When you get married, the will you wrote before marriage is no longer valid.

2. If you die without a will, all your assets do not automatically go to your partner.

3. If you die without a will, the government will use a formula to divide up your assets.

4. The last will you signed – even if it’s out of date – will be the one used if you die.

5. Wills are not just about what you leave to people – they can also identify the person you want to look after our children.

More about Jan:

Jan Viljoen is an Independent Financial Advisor who, as part of a financial plan, helps his clients with wills. He started in the Insurance field with a Liberty Life franchise in 2002 and gained invalueble experience in this field. He did form part of Standard Banks SBFC and has been intensively trained by SB Wills and Trustees. Jan is often named as executor on his clients will. He will never perform the duties of an executor, but have close ties with various solicitor firms all over NZ that will deal with this. These solicitors are on standby for any client that need a more sophisticated will.

Some of our links you should visit:

1️⃣ Contact us: https://jvfs.co.nz/contact-us/

2️⃣ Are you over-insured? https://jvfs.co.nz/2021/07/01/are-you-over-insured/

3️⃣ Do you need Life Insurance? https://jvfs.co.nz/2021/05/27/do-i-need-life-insurance-in-new-zealand/

4️⃣ Small Business money savers: https://jvfs.co.nz/2021/08/09/small-business-owners-here-are-6-ways-to-save-money-that-you-might-have-missed/

{Insurance Broker Tauranga | Jan Viljoen}