Did you know that nearly 50% of New Zealanders don’t have a will? If you’re in that 50% and are wondering whether you should put a will in place, or you need to update your current will, then watch the recording of our webinar with Public Trust here.
As a part of the webinar, we also asked the Public Trust Team to provide answers for all questions we received about Wills from the webinar so read below:
1. Does the way you own an asset impact on the estate administration required?
Yes, this is why it's important to take the time to discuss your individual situation as there are a variety of situations that could impact. If you have assets in joint names it does not come under estate administration, however if you own an asset with another person as Tenants in Common, your share will be exposed to estate administration duties. If the asset is owned by a family trust then the asset does not come under estate administration, but there may be directions under the will that need attending to relating to the trust. For example, if the trust gifting programme has not been completed then the outstanding amount not gifted may form part of the estate administration.
2. What happens with Maori land?
Maori Land operates under various legislation and legislative instruments. The Maori Land Court is your first stop for information and guidance here.
3. What information/documentation should be included with my will records?
Review your will and consider what people/organisations will need to be involved - e.g. people you've named in the will (provide contact details email and cellphone are a good option in case they move); Specific items gifted (valuations or photographs of specified items); insurance documentation (life, house, contents, medical, car etc); IRD number; WINZ number; Share holding details; KiwiSaver provider; contact details of Accountants/solicitors; prepaid funeral details; employer details; recent statement of bank accounts.
Liabilities details of organisations and amounts owing including any personal loans. Property Sharing Agreements or Contracting out Agreements (aka prenuptials). Please note PINs are not required, the Executor and Trustee has the authority upon death to contact organisations so please maintain security of your financial matters by not sharing your PIN number/s. Further for those aged over 65 or experiencing any health challenges we would suggest you obtain a medical certificate of capacity to complete a will to accompany your will.
4. Do I have to have a lawyer to complete a will?
No you do not, however it is important that you have a legally binding and effective document. We encourage you utilise professional services such as Public Trust's online wills platform using our digital trustees. Wills can be open to be challenged or raise difficulties in obtaining probate.
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5. What should I consider if I’m wanting to provide to some charities in my will?
There are a wide variety of options when it comes to providing to charities.
- Do you want a specific sum gifted to the charity?
- A percentage of your estate gifted to the charity?
- Or maybe a trust to be established upon your death?
Once you've decided which option would effectively achieve your intention then ensuring the charity's name is correctly recorded and preferably the charities number is helpful.
6. I’ve been told to transfer all your asset/house to your kids so that the government can’t take it if you go into care.
The challenge in gifting to others is you never know what might change in your circumstances or theirs. We would strongly advise seeking professional legal advice independent of the person/s you are considering gifting asset/s, to as there are many matters to consider and options available to protect your assets.
7. I’m going to build a house/unit on land owned by someone else – how does this affect my will?
You never know what might change in your circumstances or theirs. We would strongly advise seeking professional legal advice independent of the person/s you are considering gifting asset/s, to as there are many matters to consider and options available to protect your assets.
8. I have assets overseas – what do I need to consider?
The country in which the asset is may have different legislative impacts or administration requirements. It's important to seek professional advice during your lifetime as this has the potential to ensure that the administration of these assets are effectively attended to.
9. I have made loans to my kids – how does this affect my will?
It's important to document the terms of the loans to individuals as you are no longer there to provide any clarity as to the agreement. Is it to be repaid/forgiven/offset against their share? What happens if their share is insufficient to repay the loan, do they have to repay the balance owing? Is the loan interest free? Is the loan repaid upon your death or only upon the death of both you and your spouse?
10. What if I don’t have a next of kin?
This depends on what circumstance you are asking this question e.g. who can you leave your assets to if you have no next of kin? You have a variety of options. Do you have friends, charities etc that you would like to recognise? Also it's important to be aware that next of kin/spouses don't automatically have enduring power of attorney, you need to appoint them legally by making an EPA for property and personal care and welfare.
11. Should I set up powers of attorney at the same time as making a will?
We recommend any adult has a will and enduring power of attorney for property and personal care and welfare and both are regularly reviewed.
12. Do we need to appoint a lawyer to execute the will? What are the other options.
There are options available to you, we'd suggest having a look at this handy link to help you get started.
13. Does a hand-written will/agreement (regarding property outside a relationship) count as a will? Wanting to save on lawyer’s fees.
Unfortunately this is too broad a question to answer - this link may be of help.
14. Is it possible to put the house into trust for one child and then be passed on to kids of the other child?
Trusts have a variety of channels to provide for loved ones, again it depends on the details and the documentation that may be required to create it. You can read more about it here.
15. What are the common mistakes made when writing your will?
Common mistakes people may make if they don't use a professional trustee or lawyer include not creating a legally binding document or drafting clauses that prove difficult to carry out when complying with legislative or practical needs.
16. How often should a will be updated or can an old one be sufficient & robust enough? If updated why or what needs to be included.
Use your annual insurance review notifications as a prompt to look at your will and EPAs also. The top five reasons for updating your will are:
- Relationship changes (did you know you know if you do not formally divorce and you die without a will your spouse will still be legal entitled to receive some/all of your estate?)
- Children
- Grandchildren
- Significant assets purchases
- Changing in financial circumstances
17. I've heard some concerning accounts of experiences people have had with executors, how do you avoid unnecessary delays and $$?
Ensuring you have had professional advice as to the practicalities of administering your will can be a helpful way to ensure you have supported the efficient and effective administration of your will. Have executor and trustee/s that have the skills and availability to attend to the duties required. You can find out more here.
18. What happens in de facto relationships if parties have no will?
This is outlined in the presentation under "what happens if you don't have a will" and also info is available here.
19. I have been asked to be an executor for my mother's will. What does this mean and what should I consider for my own will?
Attached is a great link to "Being an executor of a will and estate" https://www.publictrust.co.nz/products-and-services/when-someone-has-died/being-an-executor/
20. I’ve been married since my last will made. What is the best way to work out asset division? We have eight adult children between us.
We'd encourage a one on one conversation as it depends on how you own your assets and liabilities, any documentation you may have (e.g. contracting out agreement); whether you have any dependent children and what your spouse/partner would like to achieve.
21. Do I make a joint or individual will with my husband if all our assets are joint and all being left to our children?
You both will need to establish wills as this can also cover what happens on the death of the remaining spouse, and it also gives you the opportunity to reflect any common wishes.
22. Does the Property (Relationships) Act 1976 affect my ability to leave property to my children in my will?
It could impact on your intentions when you die - check out https://www.publictrust.co.nz/resources/deciding-how-to-divide/
23. How do you protect your children's inheritance from a first marriage and a second marriage occurs where the assets are not even?
We'd encourage a one on one conversation as it depends on how you own your assets and liabilities, any documentation you may have (e.g. contracting out agreement); whether you have any dependent children and what your spouse/partner would like to achieve.
24. I would like to know what mechanism you have to ensure the executor follows our instructions.
Executor and trustees hold a legal responsibility to adhere to the legislative processes relating to the administration of a will. Choosing an executor and trustee that understands these responsibilities is an important start. If you are not aware of what these are, we offer an Executor Assist service which can help people in their role of executor.
25. Could the will be executed overseas? Or can I put the name of our whanau living overseas as executor of my will?
You have a variety of options available to you. It is worth a discussion with a professional. One option is you can have a will that is only pertaining to assets of a particular country and then a will that covers all other assets. That way you could have appropriate executor and trustee support relevant to the respective needs.
26. How does being a resident or citizen of multiple countries affect my will?
It does depend on the requirements of the respective country - e.g. there may be legislation relating to inheritances, land succession, tax obligations etc in different countries.
27. Should you broach or ask your x person ie. parent or (even blended family member if applicable) if they have a will or what their wishes are? Rather than find out on their passing? Is that not PA?
Individuals' provisions are considered private information and it is at the individual's discretion whether they disclose during their lifetime what their current will is (and if they change it at a later date). You may like to share your learnings from this session with the individual and whether it has prompted you to review your own will.
28. Who should be the executor of your will?
There are options available to you, we'd suggest having a look at this handy link to help you get started https://www.publictrust.co.nz/products-and-services/making-a-will/
29. Who gets the assets if there is no will?
This is covered in the presentation and also you can to refer the following link https://www.publictrust.co.nz/products-and-services/when-someone-has-died/when-there-is-no-will/
30. How long, after a parent has passed, does a child have to contest their parents will?
This link might be helpful: Challenge a will | New Zealand Ministry of Justice
31. Can I go to a JP to have a hand written will? Would this be valid?
It depends on whether the will drafted meets all the legal requirements for a valid will, including whether it is:
◦ Signed at the end by you and two witnesses, with all three being present together, and with all three seeing each other sign
◦ Whether the document is intended by you to take effect as a will
◦ Whether it was completed when you have legal capacity.
32. How much does it cost for the Public Trust to be an executor?
Fees and charges - Public Trust – this link might be helpful.
33. Are Public Trust’s fees in administering a will competitive with private law firms?
Yes, we work hard to keep our pricing competitive with the industry.
34. What fees are charged by the Public Trust to administer and settle an estate? Is it a percentage or fixed costs/fees?
Fees and charges - Public Trust – this link might be helpful.
35. If we have already made a formal will abroad (obviously in a different legal framework), what is required, if anything, to update to a New Zealand context, assuming all of the background intents and assets have not changed?
The existing will needs to be reviewed to establish whether it covers all assets and therefore encompasses your NZ assets. Once you have done this, consider whether this is what you want and I would encourage a discussion with a professional provider as to next steps
36. If you have an old (10+ years ago) will with Public Trust already, can you update it online or do you need to create a new one, and then what happens with the old one?
Writing a new will automatically revokes any previous wills you have made and yes, you can make a new will online with us. We have a great team who can support you with live chat if you need further assistance when you make your will online.
And please remember your special discount offer as HealthCarePlus members. To find out more, please click on the image below.
20% OFF
37. Why would I use the Public Trust and not a lawyer?
We offer independence, expertise, timeliness, efficient processes and procedures. We also have the ability to start dealing with matters under special authority prior to probate being issued
38. My late father’s interests in Maori land were not fully succeeded to so he still appears as an owner on Maori Land Court records and the Public Trust were the executor. My question is, is Public Trust able to manage these interests better than in the 1980s when my dad died?
That would require further discussion. An option would be to contact the Maori Land Court to seek their advice as to the best option available to your needs. https://www.maorilandcourt.govt.nz/contact-us
39. Do we need to tell our KiwiSaver providers who we want our money to go to?
IRD have requirements with regard to withdrawal of funds on death than need to be complied with here.
40. Do you look after property agreements as well as wills or should these be done separately?
Public Trust doesn't offer property agreement services.
41. How long does the court process take if you don't have a will? Will it cost the person applying any money?
The process that must be followed when someone dies without a will requires additional documentation therefore it can be uncertain as the timeframe taken to collate this and apply to the court. It is quite possible it will take longer than a probate application (when you have a will).
42. Can life insurance be paid out immediately to cover funeral costs without going through the court process if there is no will?
Often life policies may have a provision that the funeral can be paid upon producing the death certificate - check with your insurance provider as to their provisions within your policy.
43. If we have a formal will (made a number of years ago with a lawyer but want to update it) can we just add a note to the existing will and get it witnessed without going through something more formal?
Any documentation needs to meet the legislative requirements for a legally binding provision under your will.
44. I have assets overseas – what do I need to consider?
The country in which the asset is may have different legislative impacts or administration requirements, it’s important to seek professional advice during your lifetime as this has the potential to ensure that the administration of these assets are effectively attended to.
45. Can I provide for pets in my will?
Yes you can. It's important that you consider what provisions you make for your pets as their wellbeing upon your death is an immediate concern - who will care for them, do they need financial assistance to do so etc.
46. If a will is made through a particular lawyer, can the executors of the will run with a different lawyer of their choosing when the wishes of the will are being carried out in future years?
Yes, the appointed executors/trustees have the ability to choose who they wish to assist them with the legal work involved.
47. Many of us are immigrants to NZ with family overseas but children in NZ. Is there any provision to allow children to grow in NZ (assuming they are permanent residents) with a guardian that is not a permanent resident? e.g. a grandparent moves to NZ?
A will cannot circumvent immigration requirements or the Court process to decide who will have the day-to-day care of minor children. A will can however appoint a testamentary guardian for your minor children.
48. If you have a will where the other partner can stay in the home before your children can access money, can the other partner change the will after you die??
A will cannot be changed by a surviving partner, however a will of a deceased person can be challenged through the courts. It is very much dependent on the circumstances, type of challenge, length of time of relationship, circumstances of the children etc as to whether it would be successful or not.
49. Can you talk through the NZ probate process at a high level overview? Specifically, clients that have an overseas will in place at point of death & hold assets in NZ without an NZ registered will. Thanks
Specific legal advice is required for the individual circumstances. However if a NZ will maker holds assets in foreign countries, the NZ executor obtains what is called "an exemplification of Probate" for use in that country to prove our status there.
50. Can wills be registered, so that it is easily traceable?
No, there is no wills register in New Zealand.
If you have any more questions about Wills, please use the comment section below to send them to us. We will work together with Public Trust to get the answers and add them to this blog.
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