We all work to accumulate wealth and security for our families so it’s important to know everything you have strived so hard to achieve is protected.
A Will is a legal document that sets out your wishes regarding the distribution of your assets and the care of any dependents. To maximize the likelihood that your wishes are carried out, it is best to have your Will written, and signed by you and your witnesses. Otherwise, your instructions may not be carried out. Having a Will can help avoid or minimise tension amongst your survivors.
If you die without a Will, your assets can be frozen and cost your family a lot of financial and emotional stress. Everyone over the age of 18 should make a Will. In New Zealand, if you die without a Will, your property and belongings will be distributed according to the requirements of the Administration Act 1969. In other words, if you do not have a Will, the law decides ‘who gets what’ out of your estate, regardless of the needs of those close to you, or what you may have wanted. If there are no relatives in the categories listed in the Administration Act, then your estate goes to the State.
You can revoke (cancel) your will at any time (while you are still of sound mind) by:
- Making a new will
- Declaring in writing (similar to making a will) that you revoke your existing will
- Destroying your will with the intention of revoking it
- Otherwise showing an intention to revoke it (but that can cause problems if there are photocopies available and people don’t know you have revoked it)
When you make a new will, you should start by inserting a clause revoking any previous will. It is a good idea to tell anyone holding a previous will that it is no longer current.
You should review your will regularly, say, every five years. You should also review it whenever your circumstances change – if you marry or enter into a civil union or de facto relationship, or when such a relationship ends; if any trustee or significant beneficiary named in the will dies; or if your assets or debts change significantly.
Enduring Powers of Attorney
Everyone over 18 years of age should sign an Enduring Power of Attorney (EPA). An EPA is a legal document appointing an attorney to act on your behalf if you cannot or do not wish to. The person could be a family member, friend, lawyer, other adviser or a trustee company. Unlike a Will, an EPA operates while you are alive. There are two types of EPA; one for your personal care and welfare, and the other for your property. You can decide to have either one or both. You never know what to expect in life. For example, you may need to travel overseas at short notice, have a serious accident, suffer an illness such as a stroke or Alzheimer’s disease or want someone else to look after your affairs as you get older.
Your property attorney’s paramount consideration is to use your property to promote and protect your best interests, while your personal care and welfare attorney’s paramount consideration is to promote and protect your welfare and best interests.
A good time to arrange EPAs is when you are making your will, especially as an attorney may have to make decisions affecting property dealt with in your will. Like a will, an EPA can be revoked, replaced or varied by you at any time before you become mentally incapable. This should be done in writing and be properly signed and witnessed, and people who have been relying on the EPA authority need to be notified.
You can appoint any individual as an attorney provided he or she is over 20 years of age, is not a bankrupt and is not mentally incapable. An attorney could be, but does not have to be, a lawyer. You can appoint a friend, a member of your family or other trusted adviser. A trustee corporation can be appointed attorney in respect of property but not for personal care and welfare.