Will you or won't you?

Posted by: Hamish Walker on 26 May 2007

Your Will is a very important legal document. Every adult should have one.

Your Will sets out your wishes if you die. It lets you provide for your family and dictates how your affairs should be managed after your death.

If you die and you do not have a Will, decisions relating to your estate may be made by someone you don’t want to have that power, and those decisions may not be what you would have wanted.

Have you got a Will?

There are some common reasons why people put off making a Will until it’s too late. Do you recognise any of these?

• ‘It’s too hard – I want to get it right’
• ‘I’m too young’
• ‘I don’t have anything to leave’
• ‘I don’t want to think about dying’

Without a Will those you care about may miss out or get less than you expect. And sorting things out can take a long time and cost a lot of money.

It’s easy to make a Will. It doesn’t take long or cost a lot and it is important. If you’re over 18 (or over 16 and married) and don’t have a Will, you should make one. Don’t put it off.

What should you have in your Will?

Whether your estate is simple or complex, make sure your Will is easy to read. Use plain English. It does not need to be full of ‘legalese’.

The main purpose of your Will is usually to explain how your property and possessions should be divided up after you’re gone. It can also be about guardianship of your children, gifts you’d like to leave, and even what music you’d like at your funeral.

Most people ask a professional, usually a lawyer or a competent trustee company, to draw up their Will. This is usually the safest option, and can save your beneficiaries a lot of heartache, time and money later. You should discuss with that person such things as what you should include in your Will, who to appoint as your executor/trustee, and how your Will needs to be signed to be valid. By way of example, Martin Wilson Law has a comprehensive Will questionnaire for clients making a Will, designed to elicit the necessary information to ensure their Will properly reflects their intentions.

Even if you already have a Will, you should update it every time there is a significant change in your life, such as getting married, separating from a spouse, receiving a big inheritance, buying a house or business, or having a child.

How does my Will fit in with a Family Trust?

Buying assets in your own name and preparing a Will leaving those assets to loved ones may not always be enough to protect your assets. Your Will (if you have one) does not protect you or your assets before you die, and personally owning assets gives you no protection against such risks as family break-ups or changes, business failures or creditor claims, the Government (eg user pay charges) and taxes.

Leaving property to a family trust can be an effective way of making sure your assets stay in the family after you die. You should obtain specific legal advice if you want to find out more about how your Will can work effectively in tandem with a family trust.

- By Hamish Walker of Walker & Co, Lawyers. If you have a question for Hamish or would like to find out more please visit www.walkerandco.co.nz