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How to make a will or update an old will

How to make a will or update an old will

Every adult should have a will and keep it up to date to reflect significant changes in their life. Here are some tips to get you started.

Many people associate getting a will with admitting their time is almost up. But we all know that people can die in an accident or unexpectedly at any time. If you don’t have a will and the worst happens, there’s no way for people to carry out your wishes. What happens to your money and possessions will be decided according to government rules for your situation. That’s why every adult should have a will and keep it up to date to reflect significant changes in their life. Here are some tips to get you started.

What is a will exactly?

Put simply, a will is a legal document that can only be used after you die. It lets everyone know what you want done about the things you own and are responsible for. It also states who you want to identify your possessions and carry out your wishes. This person is known as the executor of your will.

A will should not be confused with a living will or advance directive, which records your medical care preferences in case you’re not able to decide or communicate the type of care you’d like. Usually, that sort of planning for while you are still living includes documents called powers of attorney.

What’s in a will?

Your will is unique to you and your circumstances, so it can cover a wide range of instructions. Here are some of the things people typically include in their will:

  • The names of one or more executors – the role can be shared
  • Preferred funeral arrangements, such as burial or cremation, ceremony and location
  • Who or what entities (such as a trust) inherit specific possessions and property, and how that is to be handled if something is to be shared
  • Any donations you want left to particular charities or organisations
  • Directions for the care of dependent children, including who is to be a guardian or testamentary (joint, but not automatically day-to-day) guardian
  • A statement that all your earlier wills are replaced by this one (revoked)

How to make sure your will is valid?

For your will to be legally valid, and therefore useable as is, the following things have to happen:

  • It must be in writing
  • You need to state in writing that you intend the document to be a will
  • At the time, you must be (mentally) capable of making the decisions involved and understanding what it all means
  • You must know what is in the will and not be under undue influence from someone else before you sign
  • You and two witnesses must sign it in front of each other, i.e. all at the same time

Even if your will is not entirely valid, such as having only one witness or if someone legally challenges its validity, the court may still approve it as valid provided the judge believes it communicates your intentions. If the court decides it is not valid, it will be replaced by your previous will, even if that’s out of date. If you don’t have a previous will, you will be in the situation of having no will.

What happens if you don’t have a will?

If you die without a will, it’s known as dying intestate. It’s best avoided because it can cause delays in funds reaching someone in need, such as your partner or dependent children. It can also cause a lot of unnecessary stress for your loved ones.

If you have no more than $15,000 in any one type of asset (cash, KiwiSaver, property etc.) your next of kin can take care of winding things up (paying tax, closing accounts etc.) and distributing the estate as they think is best.

Otherwise, someone must apply to the court to act as an administrator. Your partner or closest relatives must agree to them being the administrator. They could be a family member, friend, lawyer or an organisation like Public Trust. It can be a time-consuming and stressful role. It also requires certain experience and skills, including conflict resolution if things aren’t as someone expected.

The administrator can’t distribute the estate as they see fit. It must be done according to New Zealand law, which specifies exactly what must happen for each possible combination of who survives you - spouse or partner, parents, children, siblings or no-one.

As you can see, you’re doing yourself and your family a favour by making a will. And because you could die suddenly in an accident or health event, there’s no point in delaying it until you think your time is almost up.

How to get a will

Most people have their will prepared by a lawyer or trustee company, such as Public Trust. It doesn’t have to be expensive. If your estate is small and straightforward, some lawyers will draw up a will for very little or even for free. A lawyer may also do it for free if they’re named as the executor and the will provides for the executor’s fee to be paid from the estate.

There are websites, such as Public Trust and LawHawk, that provide the low-cost option of doing it yourself online. You simply select options and provide details in a step-by-step template approach.

Once you have a will, it needs to be kept in a safe place. The executor usually keeps the signed original and provides you with a copy for reference. Make sure some of the people close to you know where the original is, so they can easily find it when you’re gone.

How to choose an executor for your will

An executor can be anyone of ‘sound mind’ over the age of 20, or a trustee company. People often choose someone independent with good business and people skills, who they can trust to act without bias. A partner or family member is not recommended. They’ll be dealing with grief and other potential emotions at the time and may not act impartially.

Legally, you don’t have to get someone’s permission before naming them as your executor, but it’s only fair and reasonable to get their agreement first.

When to update your will

Once you have a will, it’s important to keep it up to date. Significant events and milestones in life are often good times to review your will. Here are some examples:

  • If you get married or enter a civil union (because any previous will becomes invalid)
  • If a child or grandchild is born
  • If anyone named in your will dies
  • If you buy a house or other significant asset

If you get a divorce, separation order or dissolution order for a marriage or civil union, it’s a good idea to check you understand any changes that automatically apply to your will.

Updating your will can be quite straightforward. It may simply involve adding a supplementary will, known as a codicil, which must be signed and witnessed in the same way a will is.

What happens when your will is used

If you have any type of asset worth more than $15,000 in your own name, the executor of your will must first apply to the court for probate. Basically, probate is official approval that the person is indeed the executor and can act as such. Getting probate can take a while.

Even if your executor doesn’t have to apply for probate, there will typically be quite a lot of work to do before final distributions can be made from your estate. The executor may be involved in funeral arrangements and payments, identifying and locating all the beneficiaries of your will, confirming all your assets, paying tax and debts, cancelling paid-for services, and closing accounts at banks and other organisations.

The inevitable delay in making distributions from your estate can leave your partner or other dependants in difficulty if they rely on you for significant financial support. That’s why it’s a good idea to ensure you have something like a joint account, so they can access sufficient funds to see them through what will also be a particularly emotional and difficult time.

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Important: Information and material included in this article are not intended to constitute legal or other professional advice, and the information should not be relied upon as specific advice as relevant to any particular circumstances. It is intended to be of a general nature only.

FACT SOURCES:

Sorted.org.nz

Community Law

Public Trust

Citizens Advice Bureau