Who gets your $$$ if you have no will?
If you die without a will, the law sets out who gets what
This may not be what you intend. It will probably also take longer and cost more in legal fees than if you have a will.
If New Zealand is not your permanent home (domicile), anything other than land will go to whoever is entitled under the law of your home country (domicile). Expert evidence will be required about that. It may well be different from what is shown below.
Married? Civil union? De facto?
Not married? No partner?
Main beneficiary
Your husband / wife / civil union partner is your main beneficiary, even if you were separated and in a new relationship. (‘Beneficiary’ means someone who inherits something from you when you die.) Sometimes even if you have already divided some relationship property.
EXCEPTIONS: Not if there is a dissolution order (divorce) or a separation order, or if it was a ‘relationship of short duration’.
Your de facto partner is your main beneficiary if you were still in the relationship when you died, but not if you were separated, and not if it was a ‘relationship of short duration’ (unless there is a child of the relationship or the court is satisfied your partner made a ‘substantial contribution’ to the relationship. (If you were separated, they may still be able to claim under relationship property.)
Your husband/wife/partner will have to choose whether to claim under relationship property or inheritance law. If they choose ‘relationship property’, they no longer count under inheritance law.
Under inheritance law, your husband/wife/partner is entitled to your ‘personal chattels’ and the first $155,000 of everything else. ‘Personal chattels’ means a lot more than you would expect – see FAQ below.
Anything else above $155,000 - shared with children or parents, if any
Other than ‘personal chattels’ (see FAQ below), anything above $155,000 is shared with your children (if any). If you have no children, it is shared with your surviving parent(s), if any.
No children? Your husband/wife/partner gets 2/3 and your parent/s (if any survive you) get 1/3 (divided between them, if both parents survive you). If you have no surviving parents and no children, your husband/wife/partner inherits everything.
Children? If you have children, your husband/wife/partner gets 1/3 and your children get 2/3 (divided equally among them). Your parents get nothing.
If any of your children die before you and leave children of their own, your deceased child’s share goes to their own children.
Children?
If you have any children (and no spouse or partner), they inherit whatever you own. It doesn’t matter whether they were ‘legitimate’ or ‘illegitimate.’ Even if you never met them, they will inherit from you, if you don’t make a will. If you have more than one child, they share equally.
However, if they were legally adopted by someone else, they no longer count as your children.
Your foster children, whangai, ‘Home for Life’ children and step-children do not count. (Step-children may be able to claim under the Family Protection Act. The others cannot.)
If you had a child (A) who died before you, and if that child (A) had children (AA and AB) of their own, those children (AA and AB) get the share their deceased parent (A) would have had. If child AA has already died but left their own children (AAA and AAB), those children AAA and AAB get the share AA would have had.
No children?
If you have no children (and no spouse or partner), your parents inherit, if either of them are still alive.
Otherwise it goes to your brothers and sisters (if any) – including half-brothers and half-sisters, but not step-brothers or step-sisters. If any of them have died, leaving at least one child of their own, that share goes to their children.
If you have no spouse/partner, no children, no surviving parents, and no brothers or sisters, it goes to your uncles and aunts.
And so on…
If necessary the Public Trust will be appointed as administrator and will pay a genealogist to trace your nearest relatives. All of those costs will come out of your estate.
It doesn't only affect who gets what you own. If there's no will, it gets worse... (Kiwilaw's Cheryl Simes had a rant about this, while walking the dogs at the Waimakariri River, late May 2020.)
Myths about wills
MYTH: “You need a lawyer (or the Public Trust) to make a will.”
REALITY: Many people can make their own will without using a lawyer or the Public Trust.
MYTH: “You need a lawyer or a JP to witness your will.”
REALITY: Your will can be witnessed by any 2 adults. (Lawyers like to witness the wills they have prepared, so they can check they are signed and witnessed correctly.)
MYTH: “A will has to be registered before it is effective.”
REALITY: A will does not have to be registered anywhere. However, if you leave more than $15,000, or land (other than Maori land), your executor will need to apply to the High Court for probate of the will, after your death.
MYTH: “If a will hasn’t been signed or witnessed properly, it is meaningless and can be ignored.”
REALITY: An invalid will must still be disclosed in an application for letters of administration or an application for probate of an earlier will. In some circumstances it can be declared valid by the High Court.
MYTH: “If a will doesn’t appoint an executor, it is invalid.”
REALITY: A will without an executor is still valid.
It means the main beneficiary will apply for ‘letters of administration with will annexed’ (instead of probate).
MYTH: “A will has to use the right legal jargon, to be valid.”
REALITY: A will does not have to use legal jargon. It simply has to say what will happen to what you own when you die. Plain English is usually better than legal jargon.
MYTH: “A will becomes invalid if the will-maker later gets divorced.”
REALITY: Divorce (or dissolution) does not make a will invalid. It means any gifts to the ex-spouse are automatically cancelled unless the will makes it clear this is not to happen.
MYTH: “In your will, you have to leave your property to your spouse/partner (if any) and children (if any).”
REALITY: Your spouse/partner (if any) and children (if any) can make a claim if you leave them nothing – or not very much – in your will.
That claim will not necessarily succeed. It depends on the specific facts, and on your reasons.
MYTH: “You can’t make a New Zealand will if you aren’t living permanently in New Zealand.”
REALITY: Anyone over 18 can make a New Zealand will.
If you die suddenly while working in New Zealand, having a will can save your family $$$$$ in extra legal fees. Otherwise they may need expensive evidence about the law of your homeland.
MYTH: “You can’t make simple changes to your existing will – you need a new will or at least a codicil.”
REALITY: You can make changes to your existing will if the changes are clearly signed and witnessed according to the requirements for signing and witnessing a new will.
Frequently asked questions.
What are 'personal chattels'?
Just about anything that is not land, money, or investments – unless it is used primarily for business.
Household goods, clothing, animals, cars, boats, wine, sports equipment, aircraft (!), stables (for those horses you ride for pleasure), books, garden equipment …
The legal interpretation of ‘personal chattels’ is found in section 2 of the Administration Act 1969.
Who gets my share of the house?
If you are a co-owner of a house, it depends whether you own it as a ‘joint tenancy’ or as ‘tenants in common’.
If it is a joint tenancy, the other surviving owner/s take over. Your share of the house goes to them, and not to anyone by inheritance.
If you own it as ‘tenants in common’, your share of the house becomes part of your ‘estate’ and goes to whoever is entitled to inherit on that basis.
If you need to check what form of co-ownership you have, Kiwilaw can check that for you for $28.75. Enquire here.
I am in a de facto relationship. My ex-wife and I are only separated, not divorced. We never sorted out relationship property. Does my new partner get everything?
No. Your ex-wife and your partner will share between them what either of them would have been entitled to if only one of them had been involved. That may be everything, if you have no children and no surviving parents. Or it may be the personal chattels plus the first $155,000 if you have children (or surviving parents).
This may be open to legal challenge, especially if there is any doubt about whether your relationship is indeed a de facto relationship, or if one or both were relationships ‘of short duration’.
Expect a lot of your money to go in legal fees, if you do not make a will.
I own shares in several blocks of Maori land. I have 6 children. I don't want those shares to be split into even smaller fragments when I die. What can I do about it?
If you die without a will, your shares in each block will be divided among your six children – unless they all agree in writing to do something different.
One option is to set up a whanau trust while you are still alive, and transfer your shares into that whanau trust.
See more information on the Maori Land Court’s webpage about trusts.
I have a will made overseas. Do I need a New Zealand will?
Maybe.
That will depend on where your assets are, whether your main home (domicile) is now New Zealand, whether your will is executed in a way that is valid under New Zealand law, and whether your family situation has changed since you made that will.
I am only in New Zealand on a work visa. I have $18,000 in Kiwisaver. My permanent home is in India. Does that make any difference?
Yes. If you die without a will, who gets your Kiwisaver will depend on the law of India, because that is your ‘domicile’ – your permanent home country.
Because it’s more than $15,000, someone will need ‘letters of administration’ from the New Zealand High Court. The High Court will require expert evidence from an Indian lawyer to say who is entitled to inherit under Indian law.
Getting that evidence – usually in an affidavit – may easily cost USD1000 or even more, in addition to the other New Zealand legal fees of preparing an application for letters of administration.
Alternatively, if you also have assets in India, the person who will inherit under Indian law may apply for an Indian grant of administration through the Indian courts, and then have that grant resealed in the High Court of New Zealand. (This is only possible if your home country is in the Commonwealth – which India is – or Hong Kong.)
Anyone who is working in New Zealand should make a simple will, just in case.
Is that any easier for someone who is in New Zealand temporarily if they are from Australia or the United Kingdom rather than India?
Not really. If you die without a will, who gets your Kiwisaver will still depend on the law of your ‘domicile’ – your permanent home country.
Because it’s more than $15,000, someone will need ‘letters of administration’ from the New Zealand High Court. That will require expert evidence to say who is entitled to inherit under the law of that country.
Alternatively, if you also have assets in your home country, someone can apply for a grant of administration there and then have that grant resealed in New Zealand. (This is only possible if your home country is in the Commonwealth, or Hong Kong.)
I am divorced. I have two young children who live with their father. My mother and I share a house that we bought together. If I die without a will, what happens to the house?
It depends.
If you and your mother are ‘joint tenants’, and you die, your share goes to your mother, as the surviving co-owner.
If you and your mother are ‘tenants in common’ – owning a specified share each – then your share goes to your children. As they are under age and in their father’s care, their father may well apply for letters of administration for the children’s benefit. If granted, he will then take over your share of the house as ‘administrator’ of your estate.
How expensive is it, to make a will?
It varies.
You can use Kiwilaw’s free will – get up to 12 blank forms for a one-off postage and handling fee of $12.
Or use Kiwilaw’s online will interview for a more conventional will, for $69. (Cheryl Simes – lawyer – checks that it makes sense, before sending it to you.)
Use other online will providers, most of which are also under $100.
Use a lawyer, the Public Trust, or Perpetual Guardian, for a tailor-made will, especially if you need advice, if your family situation is complicated, or if your property is complicated. They will usually charge between $200 and $500 depending on what is involved.
Or just write your own. See our guidelines on what is a valid will.
For just $29, you can even use Kiwilaw to check whether you have signed and witnessed it correctly.
