Thirty-eight percent of adults in New Zealand currently do not have a Will, and each year around 1,500 people in this country die without one (NZ Herald 11 September 2018).
Put simply – if you have assets, you need a Will. KiwiSaver funds are an asset, so even if you don’t yet own a home, you still have an asset which will need to be dealt with on your death.
Dying without a Will is termed “intestate” and this can be disastrous for your family. Your estate will be dealt with by the “rules of intestacy” which determine who your property will go to, and in what proportions, even if these were not your intentions while you were alive.
There are a number of things to consider before giving your Will instructions:
- Who will be your executor? This person will be your personal representative on your death, responsible for proving the Will and obtaining authority to administer your estate. If your estate is complex, particularly if a business or other legal structures are involved, you may want to consider a professional executor.
- Other than your immediate family, are there any other individuals or entities (such as charities, clubs or schools) that you want to leave part of your estate to?
- You will need to be aware that if you decide to leave someone out of your Will, who you have a legal duty to provide for or who you have made a promise to provide for, then that person or persons could make a claim on your estate under the Family Protection Act 1955, Property (Relationships) Act 1976 or The Law Reform (Testamentary Promises) Act 1949.
- What happens if you have a young family and both you and your spouse/partner die? Who should be the children’s guardian?
- Remember your digital assets, such as photos and videos, images, logos, presentations, emails, spreadsheets or other digital information. Some can have financial worth, and others have sentimental value. Do you want them deleted, transferred or gifted?
- How are your assets owned? If a property is owned as joint tenants then it will pass to the surviving owner rather than becoming an asset of your estate. This also applies to other assets that are owned jointly, such as joint bank accounts and joint insurance policies.
- Will any loans or debt be left outstanding? Do you need insurance to cover these?
- Will your estate have adequate funds/assets to meet your objectives?
- Are there any specific funeral or burial wishes you want noted? For example, a wish to be buried or cremated, or details about your funeral service. You should be aware that funeral and burial wishes are not binding on your executor, they are simply directions.
- If you have a Will but your circumstances change (for instance marriage, separation, new children, or you settle a Trust or form a company) you should review your Will to ensure it is still relevant to your new circumstances.
- If you have a blended family, you and your partner may need to seek legal advice about the appropriate division of assets in the event of your death to ensure both families are provided for.
Glenda Graham is a Partner in the Private Client Team at Norris Ward McKinnon. You can contact Glenda at [email protected]
