Busting some of the myths
Television and movies often contain scenes in which, after a person’s death, the deceased’s lawyer and all the beneficiaries get together for a formal reading of the Will. While there’s nothing to prevent this from happening, there’s no requirement to do so and it rarely happens in New Zealand. Usually the lawyers arrange a meeting with the executors to discuss the administration of the estate.
Who is entitled to a copy of a person’s Will?
A Will is a confidential document belonging to the Will maker. It only comes into effect on the Will-maker’s death. No-one (without the consent of the Will-maker) is entitled to a copy before the Will-maker dies. Lawyers are required by the rules under the Lawyers and Conveyances Act 2008 to keep all information relating to a client confidential. A person’s property attorney or property manager, however, can obtain a copy of the Will. Property managers and property attorneys should know what any existing Will says in case, unwittingly, they sell or dispose of an asset that is specifically gifted under the Will.
Of course, you may wish to provide a copy of your Will to certain people while you are alive. These could be, for example, the executors you have named in your Will, or your spouse or partner. Alternatively, you may just wish to let them know who holds the Will. This will avoid your family spending time trying to locate your Will after you have died.
On a person’s death, the only people entitled to a copy of the Will are the executors and beneficiaries named in the Will. The usual practice in New Zealand is for residuary beneficiaries (those entitled to a share of the residue of the estate once all specific legacies and debts are paid) to receive a full copy of the Will. If you’re receiving a specific amount of money or particular item, you are notified about that particular gift but are not usually given a copy of the Will.
Probate
Probate of the Will may need to be obtained (probate is the process of proving the Will in the High Court and is required for estates when an individual asset is worth more than $15,000). A copy of probate with the Will attached is held in the High Court and becomes a public record. Occasionally, people record in their Wills the reasons why they have disposed of their assets in a particular way. You should be careful doing this, as the probate Will becomes a public document, and therefore so will your reasons. Providing an explanation as to why you have disposed of your property in the way your Will specifies can be helpful if you have been advised that a claim is likely to be made on your estate. A preferred method is to record your reasons in a separate note which is held with the Will but doesn’t form part of it. The note will not be produced for probate and therefore will not become a public document. It would be provided if a claim was made at a later date.
Distributing the Estate
Many people think that once probate is obtained the proceeds of the estate can be distributed immediately. This is not always the case; best practice in New Zealand is to wait six months before distributing the estate. This allows time for the executors to be notified of any claims to be made against the estate, property to be sold and estate affairs to be sorted out. In most cases, if a claim is made on an estate, the claimant must notify the executor of their claim within six months of the grant of probate. Executors can be held personally liable if a claim is made within six months and the estate has already been distributed. However, in simple estates an earlier distribution is possible provided all beneficiaries agree.
