Understanding Wills

Understanding Wills

A will is a document where you set out how you would like your estate (your property) to be divided once you pass away. You can also set out in your will who you want to appoint as your executor(s), who will be the person or persons to gather your assets and distribute them in accordance with what is dictated in your will.

Frequently asked questions...

Do you need a lawyer to have a will?

Legally, anyone can write a will, however many people choose to get guidance from a lawyer or a trust company, such as Public Trust, when preparing their will. This helps to ensure that the document is legally binding and cannot be easily challenged after the person’s death.

What does 'estate' mean?

This is your property and assets that you owned and left behind when you passed away. This can include your home, bank accounts, shares, life insurance proceeds, chattels, heirlooms, vehicles, boats, bitcoin, social media profiles. 

What is probate?

Probate is a Court Order that officially recognises the will as being valid and gives the executors named in the will authority to administer the estate.

To obtain probate an application to the High Court is made.  The executor needs to produce the original will to the court and swear an affidavit confirming a number of technical points.  Once the Court is satisfied that the will is the last will of the deceased and that the executor is the person (or people) named as executors in the will then the Court will issue the probate.

Who gets a copy of your will?

While you are still alive, you are the only person who is entitled to see a copy of the will. You may decide to give a copy of your will to other people, but that is your personal choice.

Once you pass away, your executors will need to see a copy of your will so that they know where your assets are to go. Once probate has been granted, the beneficiaries under your will, banks and other organisations holding your property may also receive a copy of the will.

What is the difference between executors, administrators and beneficiaries?

An executor is someone who has been appointed under your will to manage your estate.

If you did not have a will, then a person will apply to the court to be the administrator of your estate. Your executor and administrator carry out the same role, in that they manage and administer your estate. The only difference is how they were appointed to the role.

A beneficiary is the person or persons to whom you are leaving property to under your will. Sometimes your executor or administrator is also a beneficiary, in which case they wear two different hats: one as executor/administrator (the person managing the estate) and one as beneficiary (the person receiving assets from the estate).

How long does it take to wind up an estate?

Winding up an estate can take a considerable time.  Most estates of any size will take at least six months, and some can take years depending on what is involved.  The reason that estates take so long is that there needs to be some time for people to be able to make a claim on an estate.  Claims might be that someone is owed money by the estate, or that a family member has a claim.  For that reason an executor or administrator generally will not distribute the estate until six months have passed from the grant of probate, and no claims have been received.

However, for some estates it can be quicker.  For example if the assets only consist of money in bank accounts and it is clear that there are no claims to be made against the estate then the estate can often be wound up more quickly.

Although estates can be complicated and slow moving, that does not mean that everything must come to a standstill. An estate can take steps if required and do virtually anything that the deceased did in their lifetime.  In particular, an estate can buy and sell assets, run a business and make  interim distributions if those are appropriate. All steps taken will need to be agreed to by the executor/administrator.

Once the estate has been fully administered, the residue will either be transferred to the residuary beneficiaries or continue to be held on any trusts that have been established in the will or intestacy.

Bequests are a way to support the people and causes you care about after you’re gone and to leave an enduring legacy.

What Happens if Someone Dies Without a Will?

If you do not have a will, then the Administration Act 1969 applies and your assets will be divided in accordance with the Act.