Wills - Frequently Asked Questions

19th September 2018

This blog on Wills is provided by LifeLot – Your Online Digital Safe.

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With September being 'Wills Month', we thought it would be good to share some more information around them. 

Here you’ll find answers to the most commonly asked questions about wills. If you’ve got a question that isn’t covered here, Public Trust specialists can help, please click here to get in touch with them.

Alternatively, contact your own lawyer if you have one or one of our preferred lawyers if you don't. 

What is a will?

Your will is often your last message to your loved ones. It is a legal document that is unique to you and can help make sure your assets, the people and things you love are taken care of after you’re gone.

It also specifies who is responsible for carrying out your final wishes; this person is known as the executor of your will.

Why do I need a will?

No matter how straightforward your circumstances, having a current will makes sure everyone understands what you’d like done with your estate. Your estate is everything you own and any debts you owe when you die.

If you die without a will your loved ones may face difficulty sorting out your wishes and what happens may not be what you would want or expect.

Without a will the law determines how your assets are divided and what happens to the people who depend on you.

1. What makes a will valid?

To be considered valid, a will must be written by someone of sound mind who is not being coerced or unduly influenced. 
It needs to be signed by the person making the will and dated and witnessed by at least two people who are not beneficiaries of the will.

2. Who can make a will?

Anyone who is of sound mind and is aged 18 or older, the consent of a Family Court judge is required for anyone under 18 wanting to make a will.

3. Where should I store my will?

If Public Trust writes your will, we’ll keep the original in safe storage and give you a copy.  It’s a good idea to keep your copy with other important documents like your birth and marriage certificates or passport.

LifeLot Members: You can upload a copy of your will directly to your LifeLot account. Head to https://www.lifelot.co.nz/Membership/MyLegal (must be logged in to view). You should also record where your original is kept and where any copies are held as well.

4. When should I update my will?

We recommend reviewing your will every year to make sure it’s still up to date.

If your circumstances have changed (perhaps you’ve bought a new house, gotten married/divorced or had a baby) then you should definitely consider updating your will.

For more information, see our blog post - Is Your Will Up To Date? 

5. Can I update my will myself?

You shouldn't try to change your will by altering one you've already made – this might make it invalid. The best way to update your will is to get a new one professionally prepared (or use LifeLot's Templates); this should include a clause to state that all previous versions of your will are cancelled.

6. Can I cancel my will?

Yes. We recommend doing this by executing a new will that revokes your previous will. If you think you need to cancel or revoke your will, you can do this by calling us on 0800 371 471 or emailing info@publictrust.co.nz.

7. What happens if someone dies without making a will?

This is called dying intestate. If you die without a will, everything you own will be divided up according to the law (the Administration Act 1969), not according to your wishes. The rules of the Act vary depending on whether; you’re survived by a spouse or partner, have children or your parents are still alive.

The people you care about most may not be looked after, and it could take a long time and cost a lot of money to resolve matters. This could cause extra distress for your loved ones, during their time of grief.

Find out more on what happens when there is no will.

8. Do I need to write a will to nominate guardians for my children?

A guardian is the person you choose to care for your child in the event that both parents are no longer able to do so. Naming a guardian is another valuable benefit that a will can provide. It is important that you should not name anyone to be guardian, without first asking if they are willing, comfortable and accepting of the responsibility this holds.
A testamentary guardian (guardian named in a will) makes the 'big decisions' when the parents can't - for instance about the child's education and care. For day-to-day care of a child, the testamentary guardian may need to apply to the court for a parenting order.

9. What happens if I die without enough money to cover all my bills and debts?

This is called an insolvent estate.  The estate has to pay off any outstanding debts in a set order before anything is given to people named in the will, or until the money runs out.

Family members and heirs are not responsible for the debt of a deceased family member if the debt was only in the name of the deceased. This includes anything from a loan to a credit card. Although family members are not responsible for this debt it must still be repaid from the estate of the deceased before any payments to beneficiaries. The estate includes anything from cash and money in bank accounts to insurance money, property, vehicles, household items and investments.

10. What is an executor of a will?

An executor is the person or organisation you choose that is responsible for carrying out the wishes in your will as smoothly and efficiently as possible. 
The responsibilities include applying for court approval to handle the estate (probate), locating all beneficiaries, collecting and selling assets and paying estate expenses. The duties expected of an executor can be difficult, demanding and time consuming. 
You can appoint Public Trust as your executor or an executor can receive support through Public Trust’s Executor Assist service.

11. What is a trustee?

The trustee is a person or organisation responsible for holding your assets until they can be paid to the beneficiary. For example where a beneficiary of a will is a child and the estate is invested until they come of age.  The roles of executor and trustee are usually combined.
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12. What could make a will invalid?

A number of things can impact the validity of your will so please check with us if you’re not sure.

If any of the following apply to you it’s likely you’re will is no longer valid:

  • If you have married since the will was made
  • If your will isn’t signed and witnessed properly
  • If there was some undue pressure or influence when making your will
  • If you were not of sound mind
  • If you were under 18 when you made the will (and the will was made without the Court's consent)

13. Can a will be challenged or contested?

Yes, if there are doubts around the validity of the will, or other reasons including if a person you had a responsibility to provide for believes you haven't left them a fair share or haven’t made adequate provision for them.

14. What is an enduring power of attorney?

Enduring powers of attorney are important legal documents that set out who can take care of either your personal or financial matters if you can't due to illness or an accident.

LifeLot members: If you have no enduring powers of attorney appointed, you can do this with our specially designed templates. Once  you have completed these and signed in front of a witness, please upload a copy to your LifeLot account.  

15. Do I need a will if my spouse and I hold all our assets in joint names?

Although joint property passes to the surviving joint owner by right of survivorship, we would still recommend that you make a will.  This would make provision for the division of your estate in the event that you and your spouse die more or less at the same time as a result of a common disaster, such as a motor vehicle accident.

16. What happens if I have assets overseas as well as in NZ?

If you only have investments or bank accounts abroad, in most situations your New Zealand will should cover them.

If you have a house/flat or land abroad, however, then you will almost certainly need to make a will in that country.  You also need to remember that the taxes applying upon death and/or the sale of assets may be different in each country and should be taken into account when drafting wills. 

17. What is a living will?

A living will is a written document that gives direction to family members or loved ones about the decisions you would like them to make if illness or an accident means that you ever end up on life support.

In New Zealand, there is no legal recognition of a living will however family members may find them useful.  It is not an alternative to an enduring power of attorney.

See What Is Advance Care Planning?

source: https://www.publictrust.co.nz/personal/wills/faq

Related: Is Your Will Up To Date? | The Legal Stuff | Wills 


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