Making a Will 101: Everything You Need to Know

Making a Will 101: Everything You Need to Know

Making a Will

There are so many great reasons to write a will – and yet so many of us haven’t gotten around to doing it. We all know that life is short and unpredictable, so what are we waiting for? Ok, we admit it can be a daunting process if you’re unsure about what will writing entails. You’re not alone in your trepidation: working on a will means confronting your mortality which is never a fun thing to do. However, being prepared for the worst is best practice for a stress-free, happy life.

 

What is a will?

A will is your written testament that states who you wish to benefit from your estate and assets in the case of your death. With a will you’re able to provide for your family, friends and even pets – who might not normally be entitled to anything from your estate.

If you die without a will, New Zealand law can dictate who will receive your assets. You’ve spent your lifetime building up your estate – do you really want to leave it in the hands of the state?

While everyone needs a will, there are some restrictions. Only the following people can make a legal will:

  1. Someone who is 18 years old or over and of sound mind.
  2. Someone who is under 18 years and of sound mind with a partner/spouse and the will has been made in contemplation of the marriage or civil union, or
    • they satisfy the Family Court that they understand the effect of making a will (or the action he or she has asked the court to approve), or
    • they are in the New Zealand Armed Forces and are, at the time of writing the will, engaged in war or peacekeeping, are at sea, or are a prisoner of war (or are about to comply with an order to train for or join the New Zealand Armed Forces for service), or
    • they are a seafarer at sea or are about to comply with an order to join a ship as a seafarer.

 

Make it Legally Valid

You don’t need to write a novel when it comes to writing your will. To be valid in the eyes of the law, your will must be:

  • in your writing (a spoken will is not legally binding)
    • signed by you at the end
    • witnessed by two people who are with you when you sign (you must witness each of their signatures too)

Your two witnesses should be at least 20 years old. Most importantly, they can’t be

your beneficiaries under the will, neither can their partners or spouses. If they are beneficiaries, the will is still valid but they’re not legally entitled to receive anything under it.

 

Lawyers

Your will doesn’t need to be drafted by your lawyer, in fact, you can find printed forms for drawing up your own will online and in major stationery shops. It’s worth noting that the cost of getting your lawyer to draw up your will is relatively small especially compared to what can go wrong if you draft one poorly.

If your will is unclear or ambiguous in nature, or if it hasn’t been signed and witnessed properly there could be many future headaches for your friends and family. If you’re uncertain about where to start, check in with your lawyer and they can help guide you through the process so that no problems arise later on.

Even if your will doesn’t meet all of the formal requirements (for example, if you had only one witness, not two), the New Zealand High Court has the power to declare that it’s a valid will. The judge can do this if they’re satisfied that the document expresses what you wanted to happen to your property after you die.

 

What to put in your will

When you write your will you need to decide on two major things:

  1. Who is your executor?
  2. Who are the beneficiaries?

The executor of your will is the person that you appoint to manage and distribute your estate. You should appoint two people to be executors, in case one of them dies before you do.

Executors are in charge of carrying out your last wishes, so they should be the most responsible and trustworthy people you can rely on. Many people choose family members and old family friends, while others appoint their lawyers. Who you choose is up to you, just be sure to choose wisely.

The aim of writing a will is to express your wishes about what should happen to your body, estate and to dependents after you die. The most common things to include in a will are:

  • The revocation of any earlier wills.
  • The appointment of two executors.
  • Who is to inherit property and possessions.
  • The appointment of a guardian or guardians and directions about the care of any children.
  • Directions for funeral arrangements (these wishes aren’t strictly binding, but it would be unusual for an executor not to follow them).
  • Directions for any donations of body parts to research or for medical use.

You can always change your will once you’ve written it by either writing a new one or adding an amendment.

 

Providing for your children

You can provide for your children by establishing a trust for them in your will. In your will, you can state that once a child has reached a certain age they’ll be paid a certain entitlement. Until then, a trustee is to invest the money and hold it on the child’s behalf.

A trustee can pay up to 50 percent of the entitlement towards the child’s maintenance and education before they reach the age where they are to be paid their entitlement.

 

Best practice: be prepared

Having a will is the best way to get your assets in order before you die, but the process gets a little more complicated. After you die, your executor has to apply to the High Court to get the will formally approved (this is called getting “probate”). There could also be other delays before the property is finally distributed to the beneficiaries named in your will.

Because of this, it’s a good idea for you and your partner to plan ahead and arrange your financial affairs to ensure your partner has an income during this time.

You can make this easier by having one joint bank account together as any property and money that is owned jointly passes to the surviving joint owner. So, all the money in the joint account will immediately belong to your partner when you die.

If your estate is small, it won’t be necessary to go to court for probate. If the total in your accounts is less than 15K, your bank will be able to pay your money out to your executor or relatives.

 

Where’s my will?!

Being prepared with your will also means knowing where to keep it. If your lawyer or trust has been involved in preparing the will, they hold it free of charge. You should be given a copy too, which should be kept with your personal records and should clearly indicate who holds the signed will.

You can choose to hold onto the original – if you choose to do so just keep it somewhere safe where a relative or friend can find it.

When it comes to writing a will, you’re really just setting up the future for the people you love the most. If you want to provide them with a promising future, a life insurance policy is the best way forward. Get in touch today to see how we can help you provide for your loved ones when you’re gone.