I got chatting with the girl washing my hair at the hairdressers this weekend (as you do), and we were talking about her KiwiSaver (as….well, as I do). She seemed pretty onto it all, but then asked, “I don’t need a will, though do I?” My answer was a firm “Yes, you do”. Coincidentally, this week, the CEO of Footprint, was featured by Stuff saying that our KiwiSaver accounts are at risk without a will. I agree, and this is why…
I will make a disclaimer here that I am not a lawyer, nor do I have any legal expertise. I would strongly recommend you seek legal advice if you have any questions in this area.
What is a Will?
A will very simply, states what happens to our assets on our death. More than that though, it can also cover off the following things:
- What we want done with our body on death.
- Who we want to be the guardian of our children (under 18) in the event of our death.
- Who we want to deal with winding everything up on our deaths and following the wishes of our wills (called our “executors”).
The guardianship one is key; anyone who has assets (and a KiwiSaver counts) and children, should have a will and name guardians.
What is a valid will?
To be valid, a will must be:
- In writing
- Signed by you and 2 witnesses, with all 3 being present together and seeing each other sign
- Intended by you to be a will
- Completed when you have legal capacity
A valid will remains valid until a new will is written; however, a previously written will could be deemed invalid if:
- You have married since the will was written
- You were not of sound mind when it was written
- You were under 18 when the will was written
You DON’T have to write a will with a lawyer. I think this can put a lot of people off. If your situation is complex (children from different relationships for example), then seeking legal advice is advised, but it is better to have a basic will in place than nothing at all.
What happens if I don’t have a will?
If you die without having written a will, it is called dying “intestate”. In this situation, the law determines what happens with your assets.
If you have no more than $15,000 in any one “category” (such as cash, KiwiSaver, managed funds, property etc), then your next of kin would manage the administration and distribution of assets themselves.
If you have more than $15,000 in any one category (so a KiwiSaver balance of more than $15,000 would count), then the following happens:
- Someone needs to apply to the courts to be an “administrator”. This is the person who will close your accounts, sell any property and file tax returns etc for you. A surviving spouse (or civil union or de facto partner) generally has priority to be appointed but the courts may also appoint family members or a professional administrator depending on the circumstances.
- The court grants letters of administration to the administrator and the estate can then be distributed in the following way:
- If there is a spouse (or partner), and no parents or children then to the spouse entirely
- If there is a spouse and children, then the spouse receives personal items, the first $155,000, and a third of anything left. The children receive the remaining two thirds divided equally between them. (Note – stepchildren can create a more complex situation)
- If there is a spouse and parents, but no children, then the spouse receives personal items, the first $155,000, and two thirds of anything remaining. The parents receive the other one third.
- If there is no spouse, but children, then the children get everything divided between them.
- If there is no spouse or children, but there are parents, then the estate is divided between the parents.
- If there is no spouse, children or parents but siblings, then the estate is divided between the siblings.
- None of the above – a genealogist is appointed to determine the next of kin.
This is all very complicated and shows very well I think, the importance of having a will. With a will, you have a say about not only what happens to your money, but what happens to your children too, without courts necessarily having to be involved.
Next month I will cover off Powers of Attorney, which are equally as important and are often done at the same time as a will.