WILLS (AND ESTATES)
WHY NOW AND WHY BOTHER?
What could a Will actually do for you?
Whether you are young or old, things happen, often very unexpectedly. The Will is a legal document which speaks for you if you are no longer here to speak for yourself.
It covers two important things:
- It lays down clear guidelines as to what you choose to be done about everything of yours; and also
- It sets out who you want to take charge of your affairs and empowers them to do as you have directed.
A Will is powerful and a properly drawn and prepared Will can and does make things so much easier for all who you care about to deal with things the way you want them done if something happens to you. Just as most people have insurance in place for their home, car or other possessions, against events which they do not expect to ever happen, so a Will is a powerful (and much cheaper) piece of insurance which plans for the unexpected.
Unfortunately, we see in the course of our work the problems which arise and the huge and unnecessary expense and difficulties people face if proper arrangements have not been made. Frequently the more unlikely it is that a problem will arise, the more difficult and painful the resulting situation is for all concerned if it does.
It is especially important for anyone who now has, or may later have, young children. This is because in the Will you can appoint one (or more) testamentary guardians who have the legal power to speak up on behalf of your children and see that their interests are being looked after – even if one parent is still caring for the children.
Some things which are good to know:
- If a person dies and either does not have a Will at all or the Will is not fully valid, then this can create (and commonly does) avoidable problems and expenses if there are any assets at all. It also means that the allocation of any net assets in the Estate is governed by a formula (laid down in the Administration Act) which may or may not be what you would like or even agree to between themselves. If there are no eligible family members in that case then it all goes to the Government.
- Some people, as well as making a Will, also have a document prepared called a “Living Will” or an “Advance Directive”. These spell out your wishes as to how you are to be cared for while you are still alive if you become very sick and incapable of speaking for yourself or properly making decisions on your own behalf, such as your wishes regarding life-support.
- Often people believe that if there is a Power of Attorney their attorney can continue to look after their affairs if they have died. Unfortunately, this is not so: almost all types of power of attorney come to an end on the death of the person who granted the power. At that point, the holders of the power of attorney can do no more and must stop acting. Powers of attorney are useful in their own right, and in fact holding valid current powers is a requirement in some situations – but they only apply during your life.
- The size of people’s estates is very often made much bigger than they would have thought. This can be because of amounts in Kiwisaver, life insurances, work payments, house price increases, unexpected inheritances and many other reasons.
- It is easy and inexpensive to upgrade an existing Will. It is often a very good idea to do so as circumstances change from time to time.
- If you get married that will automatically cancel all previous Will: except if the Will is properly drawn to be “in contemplation” of the marriage.
How can we help you?
The first thing is that there are many options as to how things can be provided for by a Will. With the advantage of many years shared experience in helping people with their Wills, we can assist with ideas and suggestions and alternatives which often people have not considered before and may find very useful.
There are also laws which can allow Will provisions to be overridden in some cases: We can advise you as to where the problems may arise in your particular situation and what steps to take to help avoid them where possible.
Wills have strict execution requirements prescribed by law. We can ensure that your will is executed correctly so your efforts won’t be in vain.
We can talk to you about what it means to be an executor or a beneficiary in a will, and ensure that the structure and interpretation of your will reflects your wishes.
We can act as an executor or one of the executors of your will so you don’t have to leave a difficult job to a friend or family member at a stressful and sad time.
Our offices have secure storage – we can hold your original will in safe keeping so it remains confidential and accessible to only you during your lifetime, but easily accessible to your executor/s should you pass away.
Once someone has passed on, you will learn what provisions they have made in their will for their belongings/assets (their ‘estate’) during their lifetime. If they have not made a will, they are said to have died ‘intestate’.
If your family member made a will, it is generally a simple and straightforward process for the named executor of the will to obtain Probate (if required) and distribute the assets as the will directs. If there is no Will or the will is not valid, then other steps are required. Among other things, these can also include negotiating a Deed of Family Arrangement as well as applications to the High Court for the granting of the necessary Administration. These are all steps which we attend to where they are required.
We have a lot of experience in assisting our clients with the administration of estates including applying for probate/letters of administration, distributing assets in accordance with wills, and seeing that wishes in a will are carried out.
Contact one of our Wills and Estates team members to have a look at your situation or those of other family members for whom you are concerned and discuss the position with a view to considering what options there are and what the most suitable option for you may be.
The purpose of this advice is to give our clients a general overview of the topic discussed. It is not a substitute for taking proper professional legal and expert technical advice beforehand.