Should I make a Will?
The answer to this question is usually yes. If you are an adult and have any assets (which can include bank accounts, Kiwisaver accounts, ownership of a home, etc) or are the parent of a minor child then the question is almost certainly yes.
What can I put in my Will?
There are two things that must go in your Will. You must:
(a) Say who you want to give your assets (the things that you own) to.
(b) Appoint an executor or executors to carry out your wishes.
There are also some things that you can put in your Will if you wish. They are:
(a) Appoint testamentary guardians for any children under the age of 16.
(b) Say how and where you want your body disposed.
(c) Say what you want for a funeral or that you do not want a funeral at all.
Can I do whatever I like with my assets after my death?
Yes and no. There are certain people who may have claims or expectations to receive something under your Will. Those people are your spouse or partner, your children, any step children you are supporting at the time of your death and, in some cases, your grandchildren. You may also have obligations to people you have promised to provide for in your Will. When making a Will your lawyer will discuss your family situation with you. They will ask whether or not you have a spouse or partner and children. If you have both a spouse/partner and children your lawyer will ask whether or not that spouse or partner is the other parent of any children that you may have. If your spouse/partner is also the parent of all of your children and your spouse/partner does not have any other children then you might wish to give everything to your spouse/partner in the expectation that when they die they will provide for your children. However if you have a blended family the situation may be more complex. Your lawyer will discuss this with you before you make your Will.
Who should I appoint as executor?
An executor must be aged 18 years or older at the time their appointment takes effect. Often the individual or individuals who are receiving most of your assets under your Will are appointed as executors. In most wills there is no professional executor (such as a lawyer or an accountant) but, in some cases, this is a good idea. Your lawyer will discuss who will be the executor or executors with you before you make your Will.
What is a testamentary guardian?
A testamentary guardian is a person appointed by the parent of a child by a Will (or by other written document) under the Care of Children Act 2004. A testamentary guardian appointed by a Will has responsibilities to see that the child is cared for, educated and brought up in a way the guardian believes appropriate but they do not necessarily have the role of providing day to day care for the child. A parent normally has the role of providing day to day care for their children but a testamentary guardian does not.
What about my funeral and disposal of my body?
You can give instructions in your Will about your funeral and disposal of your body but they are not legally binding. Under New Zealand law no one owns the body of a deceased person but the executor of their estate has the legal right to determine how the body is dealt with (subject to laws around the proper treatment of human bodies) and can decide whether the deceased person is buried or cremated and where they are buried or their ashes scattered. People often give instructions for the disposal of their body in their Will but if you have specific wishes for disposal of your body and/or your funeral then we suggest that you put these in writing and give them to your spouse, partner or another trusted family member with instructions that this is what you would like for your funeral. In some cases families do not look at the Will of the deceased before the funeral and so whatever the deceased has put in their Will is not even considered by the family.
Is there anything else I should know before I make a Will?
(a) It is important that you talk to your lawyer about your family situation when you make a Will. If you are planning on getting married then you should talk with your lawyer about this. Also if you are married but separated you should also talk to your lawyer about this.
(b) If there specific items (for example, family heirlooms or jewellery) that you would like to go to specific individuals then it may be helpful to clearly identify what you wish to give to who before you meet with your lawyer.
(c) You can make gifts to charities in your Will.
(d) When you make a Will with a lawyer there are some other things they will put in your Will. The purpose of these is to allow your assets to be dealt with and your bills paid in an orderly way.
There are also clauses included to protect your executor(s) and to allow them some flexibility.
If you would like to make a Will then please give us a call on 06 358 6075.