Plan your will – what will happen to what you own, and who will make decisions for your children, after you die

Burial or cremation? Where?

Organ donation?

Donating your body to science? (only valid if you have already arranged this with the institution before you die)

Headstone?

Appoint 1 or 2 executors whom you trust. (Yes, you can appoint more than 2, but it gets complicated when everyone has to sign everything. However, when the time comes, 1 or 2 executors could ‘renounce’ their role if it’s more appropriate to have just 1 or 2 in place.) 

It’s a good idea to appoint 1 or 2 backup executors (substitutes in case the first executor/s die before you, or refuse to act, or cannot act for some other reason).

They can do the work themselves, or instruct a solicitor, accountant, or trustee company (such as Public Trust) to do some or all of it for them.

They are usually people who will inherit under the will, but this is not compulsory.

They can find out online what to do, when the time comes, and then ask for professional advice if necessary.

They are usually friends or family members who are not paid for their time.

They don’t have to be in New Zealand. Modern communications make it much easier to have one or more overseas executors than in the past. However, when signing the paperwork to apply for probate, (which must be done on paper with a wet signature, not electronic signing), any overseas executor will have to produce the hard-copy original signed will. Either the executor will need to come to New Zealand to sign the paperwork, or the original will must be couriered to that overseas executor.  (Kiwilaw is trying to get this rule changed, so that – when there is at least one New Zealand executor who produces the original hard-copy signed will, any overseas executor may produce a copy of the will instead of that original hard-copy will.  However, until further notice, you need to plan on the basis that an overseas executor must produce the original hard-copy will.)

If you appoint a professional person as your executor (solicitor, accountant, trustee company), they will charge fees for their time.

The law sets out some rules that executors must follow.

Some of those are mandatory – they cannot be changed, even if you want to and even if the beneficiaries agree.

Others are discretionary – they apply by default unless you say something different in your will.

In Kiwilaw’s online will, you can change those default duties and powers, if you want to. It’s best to think about it before you start the online will interview.

Here are some examples:

• An executor (trustee) normally is not allowed to buy the house or farm from the estate, instead of sharing it among all beneficiaries (or selling it and dividing the net proceeds). Even if all the beneficiaries agree and an independent valuation is used! That’s because the trustee may not exercise a power of a trustee directly or indirectly for the trustee’s own benefit.  If you want an executor to be allowed to buy the house or farm, or any other estate assets, you need to say so in your will.
• An executor (trustee) is required to be extra-careful in their decisions when investing estate assets. Unless otherwise stated in your will, they are required to show the same care and skill as if they were a prudent business-person who was entrusted with investments for other people. You may wish to reduce the burden by allowing your executor to use the same level of care and skill as if they were investing their own money. They must not be negligent, but they can take a few more risks.
• An executor (trustee) must avoid situations where their own interests or other roles may conflict with their duties to the beneficiaries, even if they believe they can still be fair. However, you may deliberately choose an executor precisely because of their other roles, such as a professional adviser of one beneficiary (but not all) who knows the family’s affairs, or a parent/guardian of a minor or vulnerable beneficiary. The will can (and should) acknowledge and authorise such overlaps so that the executor is not paralysed by technical conflict concerns.  
• If there is more than one executor (trustee), they must act unanimously.  That means that, if they cannot agree, they will need a third-party decision (such as a judge).  If you prefer, and if you have (say) three executors, you may want to allow decisions by majority vote.

If this all sounds too complicated, just keep the default duties in place. They are intended to work for most situations and to protect beneficiaries while providing guidance to executors/trustees.

It’s better to have a will in place, with the default duties, than to have no will.

Do you want to appoint a ‘testamentary guardian’ – someone who will share the ‘big decisions’ about your children, with their other guardian/s?

Do you want this appointment to occur only if their other guardian dies, or do you want it to occur anyway?

You can give everything to one person – such as your spouse.

You can give everything to be divided equally among a group of people – such as your children, or your parents.

Or you can do it differently.

You also need to decide who gets it if your first choice does not survive you.

If you give it to your children, and if one of them dies before you, do you want their share to go to their children, or do you want it to go to your other children who survive you?

Do you want to give specific items to different people?

Do you want to give something to a charity? Find one here.

If you name your children in your will, any other children are excluded – be careful to update your will if you have more children

If you do not name your children in your will, illegitimate children are automatically included, while whangai and step-children are excluded

For Maori land – there are special rules – and dividing all the shares among all your children may not be the best idea – consider creating a whanau trust under Te Ture Whenua Maori Act 1993 (now, while you are still alive! – or else in your will)

See also FAQs below