A Will is a legal document that says what you want to happen to your property when you die. In addition, if you have young children, your Will can say who you want to take over your decision-making role for them and care of them.
It is important to make a Will because it can help reduce the financial and emotional stress on your whānau after your death. It can also help reduce the risk of arguments about your “estate” - your money, possessions, and debts.
In a Will, your property is described as your “estate”.
A Will contains your instructions about what you want done with your “estate” and how you want your dependents (partner, children etc) to be looked after Other Matters.
If you have a written Will, it is more likely that what you want to happen when you die will actually happen eg. that your dependent children will be provided for, and what happens to any property and treasured possessions you may own.
It is important to make a Will and you can do it at any time. Even if you don’t own big assets like a house, over time people build up possessions that have financial or sentimental value, such as money in a bank account, a car, furniture, household goods, a life insurance policy, taonga, jewellery etc.
You can also say in your Will how you would like your tangihanga or funeral to be carried out. When making decisions about tangihanga or funerals, it is important that you talk to your whānau about what you want.
It is especially important to make a Will when you marry or get into a civil union or de facto relationship, or when you have children.
If you marry or get into a civil union: any Will made before that relationship is automatically cancelled (“revoked”) unless when you made the Will you were thinking about (“contemplating”) marriage or a civil union. If that is the case, you should say that in your Will.
If you get into a de facto relationship: any Will made before the relationship is not cancelled (“revoked”). This means that if the Will leaves property to someone other than your current partner, it remains valid. This may disadvantage your
If your relationship ends: you should update your Will because:
Ending a marriage or civil union: if you are separated or intend to end the marriage or civil union when you die, the provisions in your Will relating to your partner remain valid until the court makes a formal separation order or the marriage/civil union is legally dissolved (you are “divorced”). You need to change your Will if you don’t want your ‘ex’ or intended ex-partner to inherit any part of your property.
De facto relationships: ending a de facto relationship does not cancel the provisions in your Will that relate to your (now) ex-partner. If you do not want your ex-partner to inherit your property, you need to change your Will.
Guardianship of children
Although you are not required to, if you have young children, it is a good idea to name a guardian in your Will. This person/s is called a testamentary guardian. Their role will be to take over some of your decision-making responsibilities regarding your dependent children if you die.
This is very important if you are your children’s sole guardian or in case both parents die at the same time. Testamentary guardians don’t necessarily care for the children, but they are responsible for making important decisions regarding the children’s upbringing.
If you die without a Will, the Administration Act says how your property will be distributed. Property usually goes to a surviving partner and immediate whānau in set amounts. If there are no whānau in the categories listed in the Administration Act, your property goes to the State (the government).
The law says what must be included and the way a Will must be set out. Whānau can get ‘Do-it-yourself’ kits, but these may not be suitable depending on how much property you have and what you want to do with that property. Whānau should consider getting legal advice including contacting the local community law centre.
Beneficiaries are the whānau or people who inherit your property. You can name anyone and any organisation you like as beneficiaries, however, there are circumstances in which whānau/people can challenge your Will.
For example, property is usually left to partners, children, possibly grandchildren and, in some cases, parents. If you choose not to leave any or very little property to your whānau, they may be able to file a claim under the Family Protection Act. The ability to challenge your Will also applies if you promised to leave a certain item or money to someone who has helped you and you don’t put it in your Will. That person can make a claim under the Law Reform (Testamentary Promises) Act.
When someone dies, their property is managed by personal representatives who you have named in your Will, or if there is no Will, they are appointed by the court. If appointed in your Will, they’re called executors. If the court appoints them, they’re called administrators.
Generally, the executor or administrator’s responsibilities are relatively simple: they find out what the assets and liabilities are, pay any debts, taxes, and duties out of the estate funds, and then distribute the balance to the beneficiaries according to the terms of the will or the Administration Act rules.
When there are claims made against the estate, it is important that whānau get some advice. The community law centre may be able to help.