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Will you, won’t you?

19 Dec 2016

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By Janice Hughes, Aspiring Law Director

I think it’s early enough that “resolution” has yet to become a dirty word … so if I could choose for every single adult one vow for the coming year, very high on my list would be getting your affairs in order.

“I will, I will – some day,” I hear you say.

Janice’s Lesson Number 1: Some day might be too late.

Having a will gives you peace of mind in life, and your loved ones some comfort and less stress when you’re gone.

The DIY will

Preparing your own will is an option, but a small omission or procedural flaw can render a homemade document null and void. Unless you’re completely au fait with the formalities, consult your lawyer. Most will draw up a basic Will for free.

For those who haven’t made a Will and are muttering: “Well, everyone knows what I want to happen when I go,” – think again. Rather than your estate being tidied up quickly, it will take months, if not a year or more, for your affairs to be settled.

During that time, your worldly goods will be frozen; nobody can benefit from them. Your estate is also likely to be thousands of dollars poorer, too, as, without a Will, the whole process needs to go through the court system.

Janice’s Lesson Number 2: Unless your wishes are properly documented, you are leaving your loved ones a stressful legacy and, probably, significantly out of pocket. Also, the law, not you, will dictate what happens to any dependents and assets.

The basics

A will, effectively, lets you “speak from the grave”, and can cover key wishes surrounding: your funeral arrangements; your children and any other dependents, who is to get what, in terms of your assets; and, the name of the executor and, if applicable, trustees.

While a Will is a “must have” for everyone, for parents of dependent children it should be a non-negotiable. Your Will identifies who your children’s guardian will be – not something you want left to chance. When selecting a guardian, though, it’s worth remembering you can state your preferences for your children’s future – for example, where you want them schooled – but it’s not legally binding.

Janice’s Lesson Number 3: Choose the guardian wisely; they should be somebody who shares similar philosophies to you and, of course, someone you trust, literally, with your children’s lives. Before committing the guardian’s name to paper, ask them first! Ensure this is a responsibility they’re happy to take on.

A Will also allows you to set out who you want to get what. You may elect to leave everything to your spouse; you may wish to divvy up your assets around several loved ones, and, perhaps, leave a sum to charity.

Whatever your plans, discuss them with your lawyer, as there are some legalities that may override your wishes. For example, under the Relationship Property Act, your spouse or anyone with whom you’ve had a relationship with for three years or more may be instantly entitled to half of your estate.

For those who own assets overseas, the arrangements made around these must be in accordance with that country’s laws, not New Zealand’s.

Executors and trustees

Like guardians, selecting the people for these roles is not a decision to be taken lightly.

The executor is the person who will be responsible for ensuring your will is actioned. They will collect the relevant documentation after your death and liaise with your lawyer.

If your will makes provision to hold assets for young children, for example, you need to identify trustees to administer the trust. Again, you should choose carefully and ask them beforehand. This responsibility can last for years. It might also involve investing, so selecting someone who has financial nous and prudence is a good start.

Janice’s Lesson Number 4: Compared to some other New Year’s resolutions, believe me, sorting a Will is a cinch. If you have a lawyer do it professionally, most charge but a small, nominal fee to draft a document you – or rather your loved ones – can rely on. Enough thinking about, just do it: before all those New Year’s good intentions fade, book an appointment online: http://aspiringlaw.co.nz/Booking/.

Feedback, comments and questions are always welcomed – please feel free to e-mail me on janice@aspiringlaw.co.nz

Janice Hughes is a Director of, and senior legal adviser at, Aspiring Law. Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.

Last updated 19 December 2016

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