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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

August 2008

The Importance of a Will

Often people do not realise the importance of a loved one having a valid Will until they experience the costly and sometimes lengthy process of validating a questionable Will or of applying for Letters of Administration to administer the estate of a deceased family member where there is no Will.

Letters of Administration

When a person dies without leaving a valid Will then the estate is called “intestate”. Letters of Administration are required by law where the deceased owned assets valued at over $11,000 or if the deceased owned an interest in land. An affidavit must be sworn by the person or persons whom the family have consented to be appointed as Administrator/s to be filed with an Application at the High Court. The Court then approves the Application and grants an Order appointing the Administrator/s. Only then can the deceased’s estate be properly administered and assets distributed to the persons legally entitled.

Probate

When someone dies leaving a Will then Probate or ‘proof’ of a Will is granted by the High Court upon application by the executor/s of the Will. It is crucial that the form and content of your Will is correct and that it complies with the Wills Act 2007 (applies to persons who have died after 1 November 2007) and the Wills Act 1837 (applies to persons who have died before 1 November 2007). If your Will is not valid then the Solicitor or the person dealing with the application must then prepare additional documentation in order for the application to be approved by the High Court.

Why a Will?

With a Will:

  • You determine who gets your assets;
  • You determine who administers your estate;
  • You determine who will make decisions regarding your children; and
  • The administration of your estate is usually quick and relatively inexpensive.

Without a Will:

  • The Administration Act stipulates who will get your assets;
  • The High Court and your family determine who will administer your estate;
  • The Family Court, if required, would make decisions regarding your children; and
  • The administration of your estate will be much more time consuming and costly.

What to considerwhen making a Will

There are a number of aspects to consider when making a Will including:

  • What assets and liabilities you have;
  • What likely funeral or other related expenses your Estate will incur;
  • Who you want as beneficiaries and why;
  • Who should administer your Estate (your “Executor/s”) 
    – for example: 
    (a) only one person or more than one?
    (b) would a competent Executor/s ensure that your estate will be dealt with efficiently and your assets will be distributed in a timely manner?
  • Testamentary Guardianship to determine who will make decisions regarding your children after you have died.

What to consider afterwards

You should also tell your Executors about your making a Will and where it is. Quite often after someone dies their loved ones are left with absolutely no knowledge of whether or not the deceased has left a Will, or if there is a Will, knowledge of its whereabouts.

It is also prudent to keep your Will up to date to avoid unfairness to beneficiaries if circumstances change.

Maori Land Interests

Probate or Letters of Administration are required where the deceased owned Maori land interests. A separate application must be submitted to the Maori Land Court to enable the transfer of shares or land interests to the deceased’s successors and this process alone can take up to three to four months.

Our Advice

If you are over the age of 18 you should see us to prepare a Will for you. Without a Will there is the risk that your assets will be distributed to people whom you may not wish to receive such assets as well as the other consequences listed above.

For those who have Wills, we recommend that you review your Will at least every three years as your circumstances may change from time to time.