Answers To Your Top 8 Will Questions
Writing a Will can seem a little daunting at first but it doesn’t have to be! For Sorted Money Month we answered your top 8 most asked Will questions to help you on your way to getting yours sorted.
1. Can my partner and I have one Will between us?
It’s a common misconception that only one Will needs to exist between two people (something called a ‘joint Will’ which is sometimes offered overseas). Within New Zealand, your Will is seen as an individual list of wishes, meaning you and your partner need to each write your own Will, even if you have the same wishes. That being said, nothing stops you from writing your Wills at the same time if that is what you choose to do.
2. Is an online Will as good as one from a lawyer?
Most lawyers use a template when drafting Wills and we do the same, the only difference is that you get to fill the fields in yourself instead of paying someone else to do it for you. Our template was created by lawyers and built as an online question-answer form to make the process super easy. Additionally, once you submit your answers, our professional drafters review them to check that everything is good as gold before turning it into a legal document and sending it back for you to sign and have witnessed.
Our Will template is suitable for 96% of customers that come to Footprint. However, to check that it is suitable for you before you use it we ask you 7 simple yes/no questions. If we identify that you require specialised support (which is less than 4% of our customers) we can refer you to our estate planning partner Perpetual Guardian who can help you get sorted.
3. Can I appoint one of my children as my executor even if they’re in my Will?
In short, yes, it’s legal to have an executor who’s also a beneficiary in your Will. Ultimately, it’s totally your call but we think it’s a good idea to keep the beneficiaries of your estate and your executor separate and here are just a few reasons why...
should your Will be challenged, it could be seen as a conflict of interest;
if you have more than one child, there is the risk of potential conflict between them or other family members (this happens more than you might think);
they will be held financially liable if they make any mistakes impacting the beneficiaries;
they will likely be grieving your loss all while having to settle your estate which could take months of their time.
Being an executor is a big responsibility so it’s a good idea to understand the role before making a final decision. If you want to learn more about the responsibilities of executors or need help choosing yours you can find out more in our blog post: Is Being an Executor a Badge of Honour or a Hospital Pass?
4. What happens if my executor passes away before me?
If you nominated a backup executor, which you can do with a Footprint online Will, the responsibility would then fall onto them. However, without a backup, you could end up with someone else which may not be your preferred option.
To minimise your risks of having an executor switch-around situation, here are a few things you can do:
Review your Will every few years or whenever something big changes in your life (i.e. if your executor passes or you no longer have a relationship with them).
Talk to your executor before nominating them in your Will and ensure they understand the tasks and the financial liability they would be taking on.
Nominate a substitute executor in case your first choice can’t or doesn’t want to do the task.
Consider appointing a professional as your executor or sub-executor. They can provide impartiality and you can be assured someone will always be available. In this scenario, you can also nominate an advisory trustee which is someone who could advise your executor on your wishes without having any of the liability.
5. Can I leave one of my children out of my Will?
Leaving one of your children out of your Will, or splitting the estate unequally between the kids can make your Will more vulnerable to being challenged.
If your adult children feel they weren’t adequately provided for or if they believe they should have received more, they could contest the Will under the Family Protection Act 1955.
Though there are never any guarantees, you may want to consider having a conversation with your beneficiaries to explain the reasons behind your decisions or, you could include a letter to accompany your Will. Although a letter is not legally binding, and ultimately the decision is up to the judge, at the very least you’ll have provided the rationale behind the choices you have made.
6. If I pass away without a Will doesn’t my stuff automatically go to my partner?
Yea / Nah!
When someone passes away without a Will, this person is said to have died intestate, and when that happens New Zealand legislation steps in and dictates how the estate will be distributed based on the Administration Act 1969.
With or without a Will, when you pass away all of your assets in your sole name are immediately frozen until your estate has been administered; only then can the beneficiaries receive their entitlements. With a Will, this process typically takes about 6-12 months however, without a Will, it can take an estimated 50% longer meaning it could be upwards of 12-18 months before beneficiaries receive any inheritance.
7. Can my Will be contested?
Yes, any Will can be challenged after your death, but the good thing is that it can’t be just anyone. There are only a few scenarios when someone could challenge a Will and that’s when it falls into one of these three acts: The Family Protection Act (FPA), the Property Relationships Act (PRA), and the Testamentary Promises Act (TPA).
The Family Protection Act: if you have children who you are not including in your Will or you are providing for unequally.
The Property Relationships Act: If you’ve been with a partner for more than three years or have children together and you don’t include them in your Will.
The Testamentary Promises Act: If you’ve promised to include someone in your Will who has provided you with a service but then don’t.
8. Do I need to update my Will when I get married, divorced, or have a baby?
All three of these scenarios are big milestones in your life that could affect your Will or prompt you to update it. Let’s dive into each scenario:
Getting married
Unless there is a clause in your Will that contemplates your marriage, the Will you wrote before marriage is no longer valid which means if you were to pass away in that time you are considered to have died intestate.
Getting divorced
When you divorce, your Will remains valid. However, your former spouse is considered void which means any gifts that would have passed to your spouse or partner are revoked. In this scenario, it could pay to review who your backup beneficiaries are in case you had originally put down some of their family members or their friends who you may no longer want in your Will.
Having a baby
Wills aren’t just about what you leave behind, they can also be used to assign a guardian to care for your children if you and your partner are no longer around. Many people don’t realise that if both parents pass away and a guardian is not named in the Will, anyone can come forward to make a case for guardianship. Of course, they would have to be relevant and have a compelling case but ultimately it is the Family Court that determines who should look after your children.
At a minimum, the Will provides you with the opportunity to express your wishes and therefore provides evidence when it comes to guardianship.
Any information provided here is purely educational and should not be considered as advice.
