Leaving it to the Act
The following is an opinion piece by Public Trust Senior Solicitor Theresa Donnelly.
Making a will is on many of our ‘To Do’ lists, but for some it never makes it to the top. In fact, approximately 55% of adult New Zealanders do not have a will.
If you die without a will, the Administration Act 1969 does the deciding on how to settle your estate. It applies a formula based on your wider family situation and divides it accordingly.
This might not be in line with your wishes. In fact, there’s a chance there will be some unwelcome surprises for your family during an already difficult time.
A will lays out what you’d like to happen to your possessions and property after you die. It’s also where you provide instructions on who will care for your children and how, who will get the pets, and what you would like for your funeral.
It’s common for people to assume that their preferred next of kin will automatically inherit their estate and in a particular way, or that those left behind will just know how you want your estate to be divided.
Often they don’t, but all the same, when the time comes, it’s the Act that will ultimately do the deciding.
So who benefits if you die without a will? Section 77 of the Act sets it out. For example:
- If you leave behind a surviving spouse or partner, but no living parents or children, then your spouse or partner gets everything.
- If you leave behind a spouse and children, the spouse gets $155,000, personal chattels and one third of everything else, while two thirds is divided equally between your children.
- If you leave behind a surviving spouse and parent(s), but no children, your spouse gets $155,000, personal chattels and two thirds of everything else, while one third goes to your parent(s).
- If you leave behind children, but no spouse, then everything goes to the children. If you do not have children or a spouse but your parent(s) are alive, then they get everything.
- In the case of no spouse, children or parents, but surviving siblings, the siblings get everything in equal shares.
Dying without a will can mean it will take longer to finalise your estate and cost more to do so. It might also increase the chance of your estate being successfully challenged.
Even if you do have a will, it’s important to review it regularly, especially after any significant events or changes in your life, like welcoming a new baby, ending or starting a relationship and buying or selling a home or business. In the age of blended families, this is especially important.
One issue that people often don’t know about is that if you get married or enter a civil union after making your will, then the will is automatically revoked.
Making a will is one of the best things you can do for your family. In fact, it’s the responsible thing to do. It provides peace of mind knowing that your loved ones will receive what you want them to and in the way you want. It means reducing the chances of leaving behind a stressful mess for others to grapple with.