Frequently asked questions
Wills – Frequently Asked Questions
Here you’ll find answers to our most commonly asked questions about wills. If you’ve got a question that isn’t covered here our specialists can help, please click here to get in touch with us.
1. What makes a will valid?
To be considered valid, a will must be written by someone of sound mind who is not being coerced or unduly influenced.
It needs to be signed by the person making the will and dated and witnessed by at least two people who are not beneficiaries of the will.
2. Who can make a will?
Anyone who is of sound mind and is aged 18 or older, the consent of a Family Court judge is required for anyone under 18 wanting to make a will.
3. Where should I store my will?
If Public Trust writes your will, we’ll keep the original in safe storage and give you a copy. It’s a good idea to keep your copy with other important documents like your birth and marriage certificates or passport.
4. When should I update my will?
We recommend reviewing your will every year to make sure it’s still up to date.
If your circumstances have changed (perhaps you’ve bought a new house, gotten married/divorced or had a baby) then you should definitely consider updating your will.
|Had a first child||You should update your will to name a guardian for your child and also to consider how to provide financially for their care.|
|Had another child or a grandchild||This depends on how your will is written. If your existing will provides for future children (i.e. "to my children, including...") , there is no legal reason to change, though it does make the estate process more streamlined. We find that customers often wish to specifically name a new child so that the child does not feel left out later on.|
|Marriage||Yes, unless your current will was drafted in contemplation of getting married.|
|Separated||If you are separated but not divorced or are in a defacto relationship, your last will still applies. It is important to update your will at the earliest time possible to ensure your beneficiaries are current.|
(dissolution of marriage)
|Divorce will not cancel your will but will effectively remove your former spouse as a beneficiary in that will and continue on to the next level. However, as divorce often means a major change to a person's life in more ways than relationship status, we recommend that your will is updated to reflect your current situation.|
|New partner||There are certain rules around what a partner can expect to receive depending on a number of factors -the primary one being length of relationship. Whether or not you wish to include your partner as a beneficiary in your will, it is important to get the right advice and update your will or obtain further advice where necessary.|
|Death of a beneficiary||It is important to review and in many cases update your will to ensure that the deceased beneficiary's share of the estate now goes to the right place. For example, where a person has not provided a gift over to the children of the deceased beneficiary, those children may miss out, while ultimately their cousins will inherit when their respective parent passes away.|
|Beneficiary has changed their name||There is no legal reason to change though it does make the estate process more streamlined, therefore saving time.|
|Change to guardian for child||It is important to make sure that this remains current, as the wrong testamentary guardian for your child cannot be changed once you have gone, except by the Family Court.|
|Add/change a gift||It is important to talk through the options for leaving gifts to ensure you have the most efficient way of getting these gifts to the right people. This may or may not mean a change to your will is required.|
|Write someone out of a will||You will need to update your will if you wish to remove a beneficiary. Your specialist adviser will be able to talk through any potential implications of removing a beneficiary and any other options that may be available to you.|
|Change to assets||An update is required if you have left (or wish to leave) specific gifts of those assets to particular beneficiaries, such as a named house to a beneficiary, or a specific bank account or life insurance policy.|
5. Can I update my will myself?
You shouldn't try to change your will by altering one you've already made – this might make it invalid. The best way to update your will is to get a new one professionally prepared; this should include a clause to state that all previous versions of your will are cancelled.
6. Can I cancel my will?
Yes. We recommend doing this by executing a new will that revokes your previous will.
7. What happens if someone dies without making a will?
This is called dying intestate. If you die without a will, everything you own will be divided up according to the law (the Administration Act 1969), not according to your wishes. The rules of the Act vary depending on whether; you’re survived by a spouse or partner, have children or your parents are still alive.
The people you care about most may not be looked after, and it could take a long time and cost a lot of money to resolve matters. This could cause extra distress for your loved ones, during their time of grief.
8. Do I need to write a will to nominate guardians for my children?
A guardian is the person you choose to care for your child in the event that both parents are no longer able to do so. Naming a guardian is another valuable benefit that a will can provide. It is important that you should not name anyone to be guardian, without first asking if they are willing, comfortable and accepting of the responsibility this holds.
A testamentary guardian (guardian named in a will) makes the 'big decisions' when the parents can't - for instance about the child's education and care. For day-to-day care of a child, the testamentary guardian may need to apply to the court for a parenting order.
9. What happens if I die without enough money to cover all my bills and debts?
This is called an insolvent estate. The estate has to pay off any outstanding debts in a set order before anything is given to people named in the will, or until the money runs out.
Family members and heirs are not responsible for the debt of a deceased family member if the debt was only in the name of the deceased. This includes anything from a loan to a credit card. Although family members are not responsible for this debt it must still be repaid from the estate of the deceased before any payments to beneficiaries. The estate includes anything from cash and money in bank accounts to insurance money, property, vehicles, household items and investments.
10. What is an executor of a will?
An executor is the person or organisation you choose that is responsible for carrying out the wishes in your will as smoothly and efficiently as possible.
The responsibilities include applying for court approval to handle the estate (probate), locating all beneficiaries, collecting and selling assets and paying estate expenses. The duties expected of an executor can be difficult, demanding and time consuming.
You can appoint Public Trust as your executor or an executor can receive support through Public Trust’s Executor Assist service.
11. What is a trustee?
The trustee is a person or organisation responsible for holding your assets until they can be paid to the beneficiary. For example where a beneficiary of a will is a child and the estate is invested until they come of age (20 years of age). The roles of executor and trustee are usually combined.
12. What could make a will invalid?
A number of things can impact the validity of your will so please check with us if you’re not sure.
If any of the following apply to you it’s likely you’re will is no longer valid:
- If you have married since the will was made
- If your will isn’t signed and witnessed properly
- If there was some undue pressure or influence when making your will
- If you were not of sound mind
- If you were under 18 when you made the will (and the will was made without the Court's consent)
13. Can a will be challenged or contested?
Yes, if there are doubts around the validity of the will, or other reasons including if a person you had a responsibility to provide for believes you haven't left them a fair share or haven’t made adequate provision for them.
14. What is an enduring power of attorney and how does it differ to a will?
Enduring powers of attorney are important legal documents that set out who can take care of either your personal or financial matters if you can't due to illness or an accident. Please refer to our enduring power of attorney pages for more information.
15. Do I need a will if my spouse and I hold all our assets in joint names?
Although joint property passes to the surviving joint owner by right of survivorship, we would still recommend that you make a will. This would make provision for the division of your estate in the event that you and your spouse die more or less at the same time as a result of a common disaster, such as a motor vehicle accident.
16. What happens if I have assets overseas as well as in NZ?
If you only have investments or bank accounts abroad, in most situations your New Zealand will should cover them.
If you have a house/flat or land abroad, however, then you will almost certainly need to make a will in that country. You also need to remember that the taxes applying upon death and/or the sale of assets may be different in each country and should be taken into account when drafting wills.
17. What is a living will?
A living will is a written document that gives direction to family members or loved ones about the decisions you would like them to make if illness or an accident means that you ever end up on life support.
In New Zealand, there is no legal recognition of a living will however family members may find them useful. It is not an alternative to an enduring power of attorney.