Wills
Introduction
What exactly is a will?
A will is a document that says what you want to happen to your property (known as your “estate”) after you die. It doesn’t have legal effect until you die.
A will is different to an enduring power of attorney (an “EPA”), or a living will (sometimes called an “advance directive”):
- An EPA takes effect when you are still alive but unable to make decisions for yourself. When you die, the instructions in your EPA are no longer relevant (see: “Decision making and powers of attorney”).
- An advance directive is how you can leave specific instructions about the medical care you want if you’re in a situation where you’re unable to communicate this (see: “Advance directives’ about future treatment”).
Do I have to make a will?
No. But it is a good idea to have a will, because it allows you to say what you want to happen to your property after you die. You can also say who you want to take care of your children (or anyone else who depends on you) (see: “Who will look after my children if I die while they are young?”).
What happens if I don’t have a will?
If you die without a will, this is known as dying “intestate”.
Your property will be distributed according to the “laws of intestacy” in the Administration Act 1969. The court will appoint an administrator instead of you being able to choose your executor (see: “Dealing with the deceased’s property”).
This might not be the way you would have wanted things done, and it can make the process more confusing and time-consuming for your loved ones.
Do I need a lawyer to make a will?
You can make your own will, but home-made wills are more likely to be challenged and/or create difficulties during the probate process (see: “Challenging a will”).
It is a good idea to get the help of a lawyer, or a trust company, such as the Public Trust, to prepare a will. They will help make sure your will is legally correct and less likely to be challenged.
Who looks after my will until I die?
If a lawyer or trust company has been involved in preparing your will, they will usually hold the will. You should be given a copy, which you should keep with your personal records. This copy should clearly indicate who holds the original will.
You can choose to hold your own original will. If you keep the original, it should be kept in a safe place. There is no national register of executed wills, so it is important to tell a close relative or one or two close friends where you keep it.
What is “probate” and when does that happen?
The executor of your will has to apply to the High Court to prove that your will is valid and to get permission to deal with your property, if your estate contains:
- real property (land and any buildings on it) or
- certain types of assets (for example, money in bank accounts, shares) where the amount held by any individual or institutions exceeds specified limits ($15,000 or $40,000, depending on the class of asset).
The court might take more than 2 months to process this application. If everything is in order, the court will then grant “probate”. Your property can’t be distributed until 6 months after probate is granted. This allows time for any claims to be made against the estate.
However, if your estate does not contain the types of assets mentioned above, your executor can deal with your property without probate. This avoids the time and cost of having to go to the High Court. For example, if you have less than $40,000 at a bank, your loved ones can go directly to the bank to ask for your money to be released.
The same thresholds apply if you don’t have a will – but, instead of applying for probate, your next of kin would be applying for “letters of administration”.
For more information about getting probate and the small estate rules, see: “Dealing with the deceased’s property”.
