Making a will is not a task that appeals to many of us, but when a person dies without a will or “intestate”, they have no control over who their assets are left to. This is currently determined by the law, or more specifically, the Administration Act 1969 (the Act).
The Act sets out who can be appointed as an administrator (typically a spouse or partner, child or other close family member) who will administer the intestate estate in accordance with the Act. The way an intestate estate is distributed depends on a person’s family structure and which family members survive them:
If you are survived by your spouse/partner only (i.e. no parents or children), your spouse/partner would receive the entirety of the estate.
If you are survived by your spouse/partner and children, your spouse/partner would receive your personal effects (furniture, car, jewellery), the first $155,0000.00 of the assets of your estate (with interest from the date of death) and 1/3 of any remaining estate funds. Your children would receive 2/3 of the remaining estate funds in equal shares. If your estate is worth less than $155,000, your children would not receive anything under the intestacy rules.
If you are survived by your spouse/partner and one or both parents, but have no children, your spouse/partner would receive your personal effects, the first $155,000.00 of assets (with interest from the date of death) and 2/3 of any remaining estate funds. Your parent/s would receive 1/3 of the remaining estate funds (in equal shares, if both are living).
If you are survived by your children but have no spouse/partner, your children would receive your entire estate in equal shares.
If you are survived by one or both parents but have no spouse/partner or children, your parent/s would receive your entire estate (in equal shares if both are living).
If you have no spouse/partner, parents or children, but are survived by your siblings, your siblings would receive your entire estate in equal shares.
If none of these people survive you, the intestacy rules provide for grandparents, uncles and aunts or cousins to receive your estate. If there are no such relatives, then your estate will pass to the Crown which has discretion to make provision from your estate to any other dependants you may have.
If you have a blended family, it becomes a little more complex. While step-children are currently not included on the list of beneficiaries on intestacy, they may have a claim under the Family Protection Act against an estate depending on numerous factors including their age, relationship to the deceased and whether they were financially reliant on the deceased. Contact us to find out more.
If you make a Will and then marry, unless your Will is made “in contemplation of marriage” it will be revoked automatically on marriage. In that case you will be intestate even though you may think you have a current Will in place.
On a side note, it is important to remember that the last Will you executed is the Will that will be administered. Even if your Will was made 20 years ago and your circumstances are completely different now, unless the Will has been revoked by marriage it is still your current Will!
It may also surprise you to know that if you and your spouse have separated, but have not dissolved your marriage or had a separation order issued by the Court, your former spouse may continue to be entitled to receive a part of your estate on intestacy. If you have a new partner, that part may need to be shared by the ex-partner and the new one.
We would recommend you review your Will at least every 5 years or whenever you have a significant life event, such as a change in relationship status or the death of a loved one.
If you would like to chat with us about making a Will or updating your current Will, please contact us at enquiries@bchlaw.co.nz to find out more.
By Hannah Cull, Solicitor and Sarah Tustin, Consultant
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter
