By Jesil Cajes, Solicitor, McWilliam Tyree Lawyers
A Will is one of the most important documents you will ever sign in your life (What is a Will & When Should I Have One)
Death can be an uncomfortable topic to discuss and often, we do not talk about it let alone plan for it. When a person dies without a Will, the person is called dying “intestate”. When someone passes intestate, this can be very costly and stressful for loved ones who are already struggling at this challenging time.
If the estate of the person who died does not exceed more than $15,000, their estate can be managed by their family members or next of kin.
If the person’s estate is more than $15,000, this cannot be distributed to the family members or next of kin without going through the Court.
If no family members or next of keen is identified, then everything will be passed over to the New Zealand Government.
The Process
When someone dies intestate, any family member (wife, husband, partner or children) cannot touch the deceased person’s estate without the authority from the Court. Sometimes, the Court will appoint someone to administer your estate, and this may not be the person you would have chosen. The family member will need to apply to the High Court to get permission to be the ‘administrator’ of the deceased estate. The process can be stressful and time consuming, especially when there is a conflict within the family.
How is my estate distributed?
Your estate will be distributed by the Court’s approved administrator according to a set formula, which may not take care of your loved ones as you would have wanted. This is in contrast if you had a Will as the executor distributes the deceased’s property to the beneficiaries according to your directions and wishes in your Will.
Without a Will, your estate will be distributed according to the Administration Act 1969 or the Intestacy Rules, which state who will receive your estate based on ‘priority’. The basic order of priority is:
- The spouse, civil union partner or de facto partner, then
- Children (regardless of whether the parents were married);
- The deceased’s parents;
- Brothers and sisters;
- Grandparents;
- Uncles and aunts;
- If none of these parties exist, the New Zealand Government will receive the property.
Here are some common examples of how the property is distributed under the rules of intestacy:
If there is a spouse or partner, and there are also children, the spouse/partner takes:
- All the deceased’s personal possessions, including cars, furniture, appliances, jewellery and so on (basically everything other than land, buildings and money), plus
- A set dollar amount, which is currently $155,000.00, plus
- One third of the rest of the deceased’s property.
- The children take the other two thirds of the rest of the property.
If there is no spouse or partner, the children take everything in equal shares.
If there is no spouse or partner, and no children, the deceased’s parents will take everything.
If there is no spouse/partner, children or parents, the deceased’s brothers and sisters take everything in equal shares.
If none of the above applies, your estate goes to the New Zealand Government.
Conclusion
Dying without a Will is complex, expensive and time consuming than if there is a Will. Save your loved ones stress, money and time by making your Will today.