The im­por­tance of an up-to-date will

Why it’s bet­ter to be safe than sorry

Kapi-Mana News - - OPINION -

The con­se­quences of not hav­ing an up-to-date will can be huge. Not hav­ing a will means the process for ad­min­is­ter­ing your es­tate is far more com­pli­cated.

It can even mean your spouse has to make a claim on your es­tate to get their share, or at worst, your as­sets end up with the Gov­ern­ment. So, what ex­actly is a will? It is a doc­u­ment set­ting out who is to get your prop­erty and pos­ses­sions when you die.

Each per­son needs to make their own will. It is not pos­si­ble for you and your spouse to have a ‘‘joint’’ will.

In your will you need to ap­point somebody as ex­ecu­tor of your es­tate.

Your ex­ecu­tor is some­one you ap­point to carry out the terms of the will.

That per­son is re­quired to ob­tain pro­bate for the will, which is au­tho­ri­sa­tion from the High Court to be­gin deal­ing with the es­tate.

The ex­ecu­tor’s role is then to make a list of all the as­sets and gather those as­sets in, pay fu­neral ex­penses and other debts from the es­tate, pay out any gifts in the will and dis­trib­ute the re­main­der of your es­tate to the per­son, peo­ple or char­i­ties you nom­i­nate. This is done with the as­sis­tance of a lawyer.

In your will you can also ap­point guardians for your chil­dren and give di­rec­tions about your fu­neral and burial.

Wills are only valid if they are prop­erly wit­nessed, so even if you have writ­ten some­thing down and signed it, it will not be legally bind­ing.

Also bear in mind that a will is in­val­i­dated when you marry, un­less that will was made in con­tem­pla­tion of that mar­riage.

If you have di­vorced, the pro­vi­sions in the will re­lat­ing to your ex-part­ner are treated as in­valid, but not if you have merely sep­a­rated.

If you die with­out a will, the law gov­erns how your es­tate will be di­vided, with­out re­gard to what you or your fam­ily might want.

Ba­si­cally ev­ery­thing is di­vided be­tween your part­ner and your chil­dren in spe­cific shares that are set out in leg­is­la­tion.

This can cause con­sid­er­able hard­ship to the sur­viv­ing part­ner be­cause they are cut off from part of the as­sets, which have to pass to your chil­dren, pos­si­bly leav­ing the part­ner with very lit­tle to live off.

While your part­ner can pur­sue a claim for half the as­sets un­der the Prop­erty Re­la­tion­ships Act, this is a lengthy and clumsy way of hav­ing to pur­sue en­ti­tle­ments.

In the worst-case sce­nario, if you have no blood rel­a­tives, the whole of your es­tate goes to the Gov­ern­ment.

If you don’t have a will, the process of ad­min­is­ter­ing your es­tate is much more com­pli­cated, can take con­sid­er­ably longer, and is likely to cost more in le­gal and other fees.

Talk to your lawyer about up­dat­ing your will if you do have one, or mak­ing a will if you don’t, to en­sure you have your af­fairs in or­der.

The New Zealand Law So­ci­ety rec­om­mends reg­u­larly re­view­ing your will, pos­si­bly ev­ery five years.

The time taken to make a will is in­signif­i­cant com­pared to the time, emo­tion, stress and an­guish of un­in­tended con­se­quences if you do not have one or have not up­dated it.

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