For as long as I can remember until fairly recently, people would often ask if we do free Wills.
I know why – it’s because there was a large trustee company out there in the marketplace that did free Wills. So because of that some people thought Wills should be free everywhere. But that same organisation would do a free Will for you on one hand, and then, once you’d passed from this world, they’d take a significant chunk of your estate for administering it for your loved ones left behind.
Good marketing? If you say so, but it kind of annoyed me. A Will is not, and never should be, a throwaway document. It is quite possibly the most important document you will sign. Free! Give me a break.
So the answer is no, we don’t do free Wills. But nor do we go crazy on the fees when you die.
Our job is to find out exactly what you want your Will to say. Basically, you tell us who you want to give your things to when you die.
That’s the easy part.
Next we need to know some important information that often gets overlooked but which should be covered in your Will. Such as:
Who is going to be the executor of your estate? That’s the person who is going to deal with everything when you’re gone. Work out what assets there are, contact all your loved ones, deal with any issues and dish out everything to the people you name as beneficiaries in your Will. This is a very important role because sometimes your estate is not going to be wound up straight away. For example, if you want your children to get their share at a certain age and they’re not there yet. Or maybe the property market is down and its simply not the best time to be selling assets and turning them into cash right now.
If you also have a Trust, assuming you are trustee of your own Trust, who are you going to nominate as your replacement? If you don’t nominate anyone that means you are relying on the remaining trustee of the Trust (if there is another trustee) to make all the right calls. That might be fine if he/she is the parent of your kids. But what if he/she is not? And what if one or more of your kids are old and mature enough to be a trustee anyway?
Likewise if you have the power to appoint and remove trustees of your Trust, who are you going to pass that power onto?
Burial or cremation?
Then we start to get into the tricky questions:
Did you promise any particular property or asset to any particular person before you died?
Are you providing fairly for your spouse and children when you die? All of them? Not leaving anyone out at all are you?
Have you told us about all your children? There isn’t one from a “liaison” that happened many moons ago that nobody knows about is there?
It's okay if you are not sharing everything equally amongst the beneficiaries of your estate as long as there are plausible reasons for it. You have a “moral duty” to provide for the maintenance and support of family members from your estate and if you don’t do that, you open your Will up to potential claims. From family members no less. Thanks for that.
Likewise if you promised someone something when you die, and then don’t deliver, same thing. It could get messy.
Of course it is highly likely to be even more complicated if you are now in a second relationship but have children from your first one. That is a whole new set of considerations and it is not going to be easy because there is some natural tension between your kids and your new partner when it comes to this sort of thing. Their rights and expectations are not always going to be aligned.
These questions are complex and take a lot of thought. The law around them is also complex and it is too easy for you to go to your grave leaving a shambles behind you for everyone else to clean up. At great expense.
So no, your Will is not going to be free, but it doesn’t need to be expensive either. The main thing is to get it right.
Contact us for a confidential discussion. Queenstown Law phone 03-4500000, russell@queenstownlaw.co.nz or claire@queenstownlaw.co.nz
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