What does intestate mean?
Dying without a Will
About 1,500 New Zealanders die each year without a Will. This is called dying intestate, meaning that your estate will be distributed according to the law, rather than the deceased’s personal wishes. This isn’t as simple as giving everything to the next of kin, however.
Without a Will, your estate will be divided between multiple entitled parties, depending on whether you are married or in a relationship, and whether you have living children, parents, or other blood relatives.
How an estate is legally divided
The rules for how an estate is divided when there is no Will are laid out in Section 77 of the Administration Act 1969.
- If your spouse or partner and children are alive, the spouse receives all chattels, $155,000 plus interest, plus 1/3 of the remainder. The children then receive 2/3 of whatever remains.
- If there are no children, but your spouse or partner and your parents are alive, the spouse receives all chattels, $155,000 plus interest, plus 1/3 of the remainder. The parents then receive 2/3 of whatever remains.
- If you have children but no spouse/partner, the children receive the whole estate equally.
- If you have no children or spouse/partner but your parents are alive, the estate is divided between the parents.
These are the most common situations, but it can get much more complex with issues such as blended families or other dependents. For example, if you have no family to receive the estate, it will go to the state. Anyone else who might have reasonably expected to benefit would then need to apply to the New Zealand Treasury for recourse.
Making sure that your affairs are in order
Intestacy can be a financial headache for your loved ones, but it can also mean that your other wishes won’t be known or legally respected. A Will isn’t only about passing on your estate. It’s also about communicating your personal wishes and ensuring that your interests are protected. That means clarifying issues such as how you’d like to be laid to rest, appointing an executor, and naming guardians for any dependants.
Because of this, it’s incredibly important to not only write a Will, but to work with a professional to do so. They can ensure that your Will is written properly and legally covers all of your bases. More importantly, a professional can provide the expertise needed to ensure that your Will is valid at all.
Many people aren’t aware, for example, that a Will is revoked upon marriage unless it’s made in contemplation of marriage. It is not, however, revoked upon separation or divorce. This can lead to problems where an outdated Will is enforced against the deceased’s more recent wishes, or an invalidated Will leads an estate to be distributed in accordance with intestacy rules.
Ultimately, a Will is a means by which we can ensure that our last wishes are carried out without forcing loved ones to make difficult guesses and decisions themselves. This helps to head off potential family conflict and speeds up the process of passing on your estate while avoiding potentially costly court proceedings.
If you’d like to learn more about how we can help you write your Will to ensure that your loved ones are taken care of, no matter what happens, please contact us today.