The death of a loved one is one of the most traumatic experiences a family will go through and if you are able to have your legal affairs in order at the time of your death, this may relieve some of the burden/stress on your family during their time of grieving.

Every adult person should have a Will so that your intentions as to who receives your assets after death are clearly set out.  You can also give directions about the guardianship of your children and deal with any specific gifts of money or family heirlooms that you wish to make.

A Will is one of the most important legal documents you can have and a properly prepared Will (rather than an over-the-counter or online “do it yourself” Will package) could save your Estate unnecessary expense after you have passed away.  Legal advice should be sought at the time you wish to make your Will to avoid any potential claims against your Estate or costs for correcting errors in your Will.

The Executor is the person (and you can have more than one) you name in your Will to carry out your wishes in accordance with the terms of your Will.

It is important to appoint people whom you know will work well together, and will carry out your wishes.

If you own any one asset valued at over $15,000.00 in New Zealand (eg. house, bank account, term deposit, life policy, shares, Kiwisaver), it is necessary to obtain a Grant of Probate from the High Court in order for the Executor/s named in your Will to administer, uplift the assets and distribute the same to the beneficiaries named in your Will.

Probate, when filed in the High Court, generally takes 4 to 6 weeks to be granted.  Once sealed by the High Court this gives the authority to the Executor/s of your Estate to deal with the assets in accordance with your Will.

If an Executor of your Estate resides overseas and is not a New Zealand citizen and you own residential property, the consent of the Overseas Investment Office is required prior to applying to the High Court for a Grant of Probate in order to administer the asset.

You should also think carefully (and take tax advice) if one of your proposed Executors lives in Australia, as this could have tax consequences in Australia for your Estate, even if you have no assets there.

When you own multiple properties and you have beneficiaries under your Will who live overseas, we would recommend to those beneficiaries at the time of administration of your Estate, to take tax advice in their own country in order to best manage any tax consequences.

If an Estate owns a property it is a requirement to obtain an IRD number for the Estate and further, if an Estate earns over $200.00 of income in any one tax year it is also necessary to file an Estate tax return.  Often it is also beneficial to the Estate to file a final lifetime tax return for the deceased.  The services of an accountant are generally required.

At the time of your death if you own assets valued at under $15,000.00, Probate is not required and the Executor/s named in your Will are able to uplift the assets and attend to distribution to the beneficiaries of your Estate in accordance with your Will, most often without the need to engage the services of lawyer.

Did you know:

• An Attorney’s right to act under an Enduring Power of Attorney ceases/is revoked on the death of the Donor.

• If you own a property or a bank account jointly with, for example, your spouse or de facto partner or civil union partner, it will automatically pass to them as survivor following your death.

• The same applies to a bank account owned jointly with another person (eg. son, daughter, sister, brother). If you intend that these funds be shared between all your children, please be aware under current law the bank account will pass automatically to the other person and not form part of your Estate. Holding your funds this way is sometimes suggested by Banks so as to make it easier for the other person to have access to the funds on your behalf to pay your bills if you are unable to do so.  It can however causes problems following your death as the other person is entitled to retain the funds as their own and not use them for Estate expenses.

• When your Bank is advised of your death, the Bank automatically cancel all direct debits and automatic payments loaded against your bank account. If you own a property, it will be up to the Executors of your Estate to make other arrangements for payment of rates, insurance premiums and other outgoings on the property until such time as it is disposed of.

If you die without leaving a Will, it can be a very costly process to administer your Estate so it is important that you have a current Will.