You don’t need a Will right? Are you sure?
Preparing a will, or even having a conversation with your loved ones about writing a will, is hardly something that you can just throw into conversation while you peel the spuds at dinner time. Dying can be a confronting thought, and even though we all know it’ll happen one day, the unknown of that day seems to be a great reason to not deal with it.
But spare a thought for your friends and family! Not having a will in place, especially when there are a lot of assets involved, can cause further stress and cost at what may be an already highly emotional time.
In reality, everyone over the age of 18 should have a will - as, by the age of 18, your parents can no longer make decisions on your behalf. It becomes even more important when you buy a house, get married, or have children.
What happens if you don’t have a will?
Beneficiaries of your estate
When a person dies intestate (without a will), Government legislation will determine who benefits from your estate – you don’t get a say at all. The priority of beneficiaries is:
- To a spouse, de facto partner, or civil union partner; then
- Children; then
- Parents; then
- Siblings; then
- Grandparents and/or uncles and aunts; then
- The Crown, if no one from 1-5 is alive.
This may be how you want to distribute your estate, but the benefit of writing a will means you have more freedom in who you leave assets to, and how much. For example, you can leave monetary gifts to charities, or you can leave part of your estate to family members that would miss out under the Government’s rules. Writing a will also allows you to leave gifts or items of sentimental value to family members or friends.
On the other hand, there may be close family members that you don’t want to receive under your will or to receive very little. Consider, for example, an estranged child who hasn’t been in contact with their parents for 20 years. Caution must still be exercised with leaving certain classes of beneficiaries out of wills, such as children, as they may be able to make a claim against your estate in certain circumstances (visit https://www.justice.govt.nz/family/challenge-a-will/ for more information). However, there is much greater freedom in preparing a will and choosing exactly who you want to benefit from your estate, and how much you want them to receive.
Executors
Many people choose close friends, professionals such as accountants, or a law firm to act as an executor and trustee of their estate. If you don’t nominate someone to act as the executor, then the above priority order will be used to select one for you. Again, while this may work for some people, it may not be for everyone.
Writing a will means you can choose people that you know you can trust, who will act in the best interests of your family members, and who will stay neutral in performing their duties.
Guardians
Having children is perhaps one of the best reasons to write a will. If you have any children aged under 18 years old, naming a person who can act to become a testamentary guardian of your child/ren in your will means that they will be looked after should you and your spouse and/or partner die. This also prevents anyone from having to apply to the Family Court for guardianship of your children. You can find out more about this at https://www.justice.govt.nz/family/care-of-children/parenting-and-guardianship/who-a-guardian-can-be/.
In conclusion, yes you need a Will! This then begs the question of how do I get one? It’s quite easy to find yourself a “free will” online now. Unfortunately here it pays to be cautious as a “free will” devalues one of the most important documents a person will ever make – a will. Is a free Will better than no Will at all - in most circumstances no as it may not be achieving the outcome that is best for you and your circumstances. Before considering a free will, please read this.
Ultimately, one of the key reasons why you need a will, and why you should seriously consider drafting one, comes down to choice: by writing a will, you get to choose exactly what happens after you die, from how your assets are to be distributed to people, to your wishes around burial or cremation. It lessens the risk of family conflict and saves money and a whole lot of stress in the long run.
If you want to know more, please get in touch with one of Gibson Sheat's Estates and Elder Law Team by contacting us at info@gibsonsheat.com.
Georgia Osmond is a Solicitor in Gibson Sheat's Masterton Estates and Elder team. You can reach Georgia at georgia.osmond@gibsonsheat.com or on 06 370 6480.
Disclaimer: The information contained here is of a general nature and should be used as a guide only. Any reference to law is to New Zealand law and legislation. We recommend before acting on it, you consult your lawyer or other trusted adviser.
