Why you should have a Will

DO YOU NEED A WILL?

A Will enables you to have your estate distributed in the way that you want. If you don’t have a valid Will your estate will, by law, be distributed as described below, which may not be what you would have wanted and may not be best for your family. And it can cause additional (avoidable) costs and delays to your estate.

We think that, especially if you have children, having a Will should be compulsory!

For an example of what not to do, see this link descibing the mess left behind by Australian racing driver Peter Brock: Brock Family Battle of Wills

MAKING A WILL & WHAT YOU NEED TO CONSIDER

When making a Will you need to consider:

• The nature and value of your assets.
• The requirements of your spouse/partner and children.
• Who should be your executor(s) (the persons who administer your estate).
• Who should be the guardian(s) of your infant children.
• At what age should children inherit.
• Whether you want to make any specific gifts of money or other items to named persons.
• If you don’t have children, how is your estate to be divided.

WHY & WHEN YOU SHOULD REVIEW YOUR WILL

Some life events where you should review your Will and make any appropriate changes:

• Separation (note: divorce does not automatically cancel your existing Will).
• Marriage or re-marriage (note: marriage automatically revokes any earlier Will).
• Entering into, or at the end of, a de facto relationship (especially of 3 years +).
• Birth of first child (make a Will to provide for your kids & name a guardian for them).

There are other circumstances where you should amend your Will such as following the death of all your named executors or guardians or a major change in your financial situation. We recommend that you review your Will five yearly, especially if your circumstances change significantly or the circumstances of your intended beneficiaries have changed.

WHAT HAPPENS IF YOU DO NOT HAVE A WILL?

There is a common misconception that if you are married or in a long-term de facto relationship and you do not have a Will, then everything goes to your spouse/partner. This is not correct. The Administration Act provides otherwise (see below). That legislation determines precisely who is to get what from your estate if you do not leave a valid Will. Also, the Property (Relationships) Act gives certain rights in your estate to a spouse or de facto partner who survives you.

If you are married or in a de facto relationship of 3 years or more at the time of your death and you do not leave a Will, the Administration Act provides that your estate is distributed as follows (assuming no previous or other co-existing de facto relationship):

Your spouse/partner gets:

• your personal chattels; plus
• $155,000.00.

If you have children:

• 1/3 of the remaining balance goes to your spouse/partner; and
• 2/3 of the remaining balance goes to the children equally.

If you have no children:

• 2/3 of the remaining balance goes to your spouse/partner; and
• 1/3 of the remaining balance goes to your parents.

Only if you have no children, and no surviving parents, will 100% of your estate go to your spouse/partner. Even this is not a certainty where you have had a previous or co-existing de facto relationship. If you have no surviving spouse/partner or children then the Act provides for a list of various relatives who will receive in a certain order of priority.

WHAT PROPERTY RIGHTS DOES MY SPOUSE, CIVIL UNION OR DE FACTO PARTNER HAVE UNDER THE PROPERTY (RELATIONSHIPS) ACT ON MY DEATH?

The Property (Relationships) Act deals with the ‘relationship property’ of married, civil union and de facto couples. Where one spouse or partner dies there is a presumption that all the deceased’s property is relationship property to which the surviving spouse or partner has a 50% claim. However, spouses/partners can make arrangements to ‘contract out’ of the Act. But we’ll address that in another information sheet.

WANT TO KNOW MORE? Just ask Atticus Legal, Wills & Estate Lawyers

CALL ANDREW SMITH, the owner of Atticus Legal, for expert professional advice on any of the matters referred to in this information sheet.

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LAWYERS HAMILTON, LAWYERS HAMILTON NZ

11 Garden Place (Level 7), HAMILTON

Ph: (07) 839 4558, Fax: (07) 839 4559, Mob: 021 508 189

Email: andrew@atticuslegal.co.nz

Website: https://atticuslegal.co.nz/

Disclaimer: The information contained in this information sheet is, of necessity, of a general nature only. It should not be relied upon without appropriate legal advice specific to your particular circumstances.

This information sheet is copyright © Atticus Legal, March 2016.