Around half of New Zealanders don’t have a will. This means that if you die you have legally left no instructions about what should happen. This can cause significant issues if you have dependent children. Who will care for them? Where will the money come to look after them?
Since ancient Greek and Roman times, the State has had the power to step in if there was no will or if the will disinherited particular children without explaining why. Throughout history an important part of making your will is to have it witnessed. While some oral wills are acceptable, historically this was only if they were witnessed by a large number of people.
The legislation that enables us to have wills in New Zealand is the Wills Act 2007. In your will you have an Executor. This person becomes your personal representative upon your death and it is their responsibility to collect together all your property and any debts. When the bills are paid, the executor must then distribute the remaining money and property according to the instructions in the will. In your will, you can also appoint a guardian for your dependents.
So, what happens if you don't have a will in place?
If you die without a will you are said to be 'intestate'.
In this case, the Administration Act 1969 steps in. This Act outlines a default system of allocating your assets, based on what the parliamentarians believe is relevant. The allocations are based on what people theoretically do do with their assets. But this may not be at all relevant for you.
If you have a small estate - you might not have to get court approval and have your estate go through probate. This includes assets where the value of the asset is less than $15,000. (Administration Act s64A, s65, s82A).
If you don't have a will, and your assets have to be distributed according to the Administration Act, there will be the following issues:
- A delay in distributing your assets, while the matter works through the legal channel
- Additional legal costs to manage the matter
- The assets might not be distributed as you would want them to be distributed.
At present, this is how your assets would be distributed under s77 of the Administration Act if you died. We strongly recommend that you look at this schedule and work out if that is what you want to happen. Even if it is, do you want your loved ones to have to go through the legal and administrative hassles of having to deal with this if you die?
| Your status | Your chattels | The residue of your estate |
| Married, defacto or civil union partner NO CHILDREN and NO PARENTS | All chattels go to your spouse or partner | All assets go to your spouse or partner |
| Married, defector or civil union partner WITH CHILDREN | All chattels go to your spouse or partner | First $155,000 to your spouse or partner. The remainder is to be held on trust with 1/3 for your spouse or partner and 2/3 held on trust for the children. |
| Married, defacto or civil union partner NO CHILDREN and LIVING PARENTS | All chattels go to your spouse or partner | First $ 155,000 to your spouse or partner. The remainder is to be held on trust with 2/3 for your spouse or partner and 1/3 held on trust for your parents equally. |
| CHILDREN but no spouse or partner | All chattels held on trust for children. | All chattels held on trust for children. |
| NO CHILDREN, NO spouse or partner, but LIVING PARENTS | All estate held in trust in equal shares for parents | All estate held in trust in equal shares for parents |
| NO Children, spouse/partner or parents, but brothers or sisters | All estate held on trust for brothers and sisters. | All estate held on trust for brothers and sisters. |
| No children, parents, spouse/partner or brothers/sisters but other relatives | Held on trust for half to maternal relatives and half to paternal relatives | Held on trust for half to maternal relatives and half to paternal relatives |
| No relatives at all | Estate belongs to the Crown in bona vacantia and the Crown can decide what to do with it. | state belongs to the Crown in bona vacantia and the Crown can decide what to do with it. |
The Administration Act also allows for more complicated situations.
You may think you have no or little assets, but if your KiwiSaver is over $15,000, your loved ones may have to deal with the Administration Act if you don't put in place a will.
For more information, check out this helpful website: http://communitylaw.org.nz/community-law-manual/chapter-24-a-death-in-the-family/dealing-with-the-deceaseds-property-wills-intestacy-and-small-estates-chapter-24/
So, take that time, take the big breath and get your Will written.
Read more on KiwiSaver and your Wills at this blog post.
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