Heather Elmsly

In today’s evolving financial and legal landscape, having a valid Will in place has never been more critical for New Zealanders. The absence of a Will can lead to unnecessary delays, stress, and cost for families. One of the most overlooked reasons to have a Will is KiwiSaver. Many people assume their KiwiSaver balance will automatically pass to their partner or next of kin on death, but that’s not how it works. KiwiSaver funds are held solely in the name of the individual and do not pass by survivorship (think, property held as joint tenants). Instead, they must be dealt with as part of the person’s estate, and if there is no Will, this creates delays and uncertainty in accessing those funds. With the recent Government budget injecting more incentives and support into KiwiSaver, balances are likely to grow significantly over time. Another relevant factor is the probate threshold. Currently, assets over $15,000 will require a grant from the Court. This threshold is due to increase to $40,000 in the September 2025 to better reflect current asset values. In real terms, the threshold is easily exceeded - especially when you consider KiwiSaver. Without a Will, for which the Court can grant “probate”, family members must apply for “letters of administration” which can be slower and more complex, particularly when family dynamics are tense. At the same time, more New Zealanders are choosing to own property as tenants in common rather than joint tenants - especially in blended families or where people wish to protect their children’s inheritance from a new partner. This structure allows each party to leave their share of the property to whomever they choose, provided they have a Will to specify that. In this situation, a Will should complement any Contracting Out Agreement (or “Pre Nup”). Many family trusts are now being wound up or simplified due to changes in trust law, compliance costs, aging/migrating settlors and international beneficiaries (giving rise to tax implications). As assets come out of a trust and revert to personal ownership, they become part of a person’s estate and must be carefully dealt with by their Will. Overseas properties, investments and digital assets can be challenging to deal with if someone passes without a Will (or Wills) to reflect what should happen to assets in other countries. Having a Will is no longer just about passing on the family home - it’s about ensuring some thought is given to the increasing complex assets and arrangements of the modern estate.   With the right guidance, a complicated situation can have a clear and manageable solution. The key is to decide what you want to achieve, and get a Will drafted to reflect that. Holland Beckett’s specialist succession and estates team provide expert advice on succession planning and can help to create a Will that best reflects your individual situation. This article was first published in the New Zealand Herald and Bay of Plenty Times, July 2025.

As we have moved into a more digital age, consideration should be made as to what happens to your digital assets when you die. Increasingly, people are amassing both personal and business digital assets that have value – let’s not forget about James Howells who has spent a considerable fortune trying to dig through a Newport landfill site to find his private access key for his Bitcoin, which is now worth a whopping $800m. So, what are your digital assets, what happens to them when you die, and how can you make sure they are not lost? Your digital assets, which may have more value than others, include: Digital assets on computing devices; Financial accounts, including online gaming accounts, Bitcoin or other cryptocurrency wallets, and FOREX trading accounts; Digital books, music or video streaming; Cloud storage accounts; Payment services; Social media accounts used for marketing or advertising, loyalty programmes and any other; Computer programmes directly installed onto a computer or provide the software as a service; Intellectual property; The infrastructure of an online business – websites and blogs; Customer management services that manage mailing or newsletter descriptions. You may also have assets of sentimental or other value such as photos, family trees (ancestry.com), or emails. The best thing you can do is consider what you wish to happen to these digital assets and make provisions in your Will as to who has the right to access your digital assets, either stored on your computer, phone or that exist online, to amend or remove any profiles and provide any other notifications as required.   Provision should also be made in your Will as to where all of the details of relevant passwords and logins are contained.  It is therefore important to have a “password safe or manager” that stores and encrypts a list of passwords and user names for all online assets with the master password either provided in a sealed envelope with your Will or some other way with your Executors. In addition, many online providers have their own policies as to what happens when you die and the rights to those digital assets will vary from provider to provider – for example, Facebook allows people to turn a deceased profile into a memorial page and Google allows you to plan ahead and appoint inactive account managers who are notified if the account is inactive for a certain period of time or you can choose to have the account deleted entirely. Speak to your legal advisor about a specific clause in your Will relating to digital assets and what you would like to achieve.  This clause should cover whom you wish to leave your digital assets to, what that includes and any appropriate login data.

Being appointed as an Executor in a Will is a significant responsibility.  You are entrusted with administering the estate in accordance with the Will and New Zealand law. This includes identifying and managing all assets, which may range from bank accounts and property to investments.  There is also the emotional side of supporting a family, and dealing with your own grief in the process. We work closely with executors to support them as much as they need. The following outlines the key steps taken by executors/legal advisors as part of the estate administration process. 1. Locate the Will and Confirm Your Appointment Your authority to act comes from the Will.  Once you have located the original signed Will and confirmed you are named as executor, you are responsible for securing and protecting the estate’s assets. If more than one executor is appointed, all executors must act jointly.  Asset holders will require consistent instructions from all executors before releasing information or funds. It is very important that you keep the Will in a safe place and do not alter or mark it in any way. 2. Apply for Probate Before you can access or deal with most estate assets, you will need to obtain Probate.  This is a High Court order confirming that the Will is valid and that you are authorised to act as executor. Most asset holders — including banks, investment managers, and mortgage trusts — will not release or transfer assets until Probate has been granted. 3. Notify All Asset Holders You must identify the assets and liabilities of the estate such as bank accounts, property, insurance, shares, income streams and debt. Once Probate is underway, you should contact each organisation where the deceased held assets. This may include: Banks KiwiSaver providers Investment managers Share registries Insurers Each organisation will advise you of the documentation required and the options available for dealing with the asset. This typically includes providing: A certified copy of the death certificate A copy of the Will Identification for all executors A copy of the Probate order once granted If the estate includes fixed term or income producing investments, the provider will confirm how interest or returns are treated and whether early withdrawal is possible. Investments held in joint names pass jointly by survivorship in most cases. Some other assets transfer to a named beneficiary automatically on death, i.e some life insurance policies. KiwiSaver can never be held jointly, and will always pass to an estate to be distributed pursuant to a Will (or the rules of intestacy). You must also notify the beneficiaries of the Will and make relevant disclosures to them.  Your estate’s lawyer can assist with this. 4. Protect and Manage the Estate\'s Assets Any assets should be secured so far as possible.  For example, if there is a property, you should check who has access to keys, that the insurance is up to date and that any expenses (such as rates, water and power) are up to date. Executors have a legal duty to preserve the value of the estate.  This includes: Confirming balances and ownership detail Reviewing maturity dates for fixed‑term investments Ensuring income continues to be paid to the estate Making prudent decisions about whether to retain or redeem investments Any decisions must be made in the best interests of the beneficiaries. 5. Pay Estate Debts and Expenses Before distributing any assets, you must settle the estate’s liabilities, including: Funeral expenses Taxes Professional fees Outstanding debts Funds released from investments or bank accounts may be used for these purposes once paid into the estate account. Executor expenses In New Zealand, the general rule is that an executor cannot charge for their time unless there is a specific clause in the Will allowing them to do so.  However, executors are entitled to reimbursement for their reasonably incurred expenses.  This could include if you were to pay the insurance for an estate property or a rates bill to avoid a late fee. 6. Distribute the Estate Once debts have been paid and the estate is ready for distribution, you may: Redeem investments and distribute the proceeds, or Transfer investments to beneficiaries (if permitted by the Will and accepted by the provider). Asset holders will require formal written instructions from all executors before releasing or transferring funds. Risks facing executors As executor, you are required to act with neutrality and independence, while doing your best to follow the wishes of the Willmaker.  Potential arguments can arise between family members who may be unhappy with the terms of the Will. Before making distributions, you should seek advice from your estate’s lawyer to ensure you are not exposing yourself to undue risk.  You also should take advice as to how to manage any conflict between the beneficiaries and how to deal with potential claims.  You can attempt to reach agreement with all beneficiaries as to how assets are to be distributed, but if there is no agreement it will be for a Court to decide. Due to potential personal liability, it is strongly advised that the estate’s assets are generally not distributed until the expiry of six months.  In practice, estates can take several years to distribute. 7. Maintain Accurate Records Executors must keep clear and complete records of: All correspondence with asset holders Balances and income received Decisions made regarding retention or withdrawal Final distribution amounts These records form part of your executor’s account and help protect you from personal liability. 8. Key Considerations for Estates with Managed Investments Where the estate includes investments such as those held with mortgage trusts, fund managers, or other investment providers: Fixed‑term investments may not be immediately accessible. Executors should check maturity dates early to manage timing expectations. Interest or returns may continue to accrue after death. Providers will confirm how this is handled. All executors must sign instructions. Investment providers cannot act on partial or individual directions. Early withdrawal may require approval or may not be available. Executors should consider whether early redemption aligns with their duty to act prudently. Administering an estate can be complex, particularly where investments or fixed‑term assets are involved. Understanding your obligations and the steps required will help ensure the estate is managed efficiently and in accordance with the Will. Executor’s Decision Making Executors are appointed by the Willmaker to carry out their intentions.  It is important to always consider the intention and wording of the Will before making any decisions.  Those close to the deceased will want to be involved in any decisions and this should be welcomed.  The executor will work as a neutral person making sure that the wishes of the deceased are upheld eg. if they want to be cremated making sure that this is done, or the specific bequests are carried out. Where there are intimate decisions that need to be made eg. where to bury the body and the Will will not necessarily specify this – it is the role of the executor to facilitate discussions and agreement between the whānau. What is a Statement to Accompany a Will or a Memorandum of Wishes A Statement to Accompany a Will is a statement made by the Willmaker explaining any decisions made in the Will.  It provides more of an understanding around what the intention of the Willmaker was at the time of drafting and signing the Will. The Memorandum of Wishes is similar to the Statement whereby it gives the executor or trustees further instructions with the Will and helps give insight into what decisions they want to be made.  Neither of these documents are legally binding, however, it is useful to read them and consider what they are wanting to achieve. Can I get out of it? If you are unable or unwilling to be an executor, the next nominated person in the Will can be appointed.  You will need to renounce before you take any steps to administer the estate. If you have accepted the role as executor and the estate administration is ongoing, you cannot simply retire, but rather you have to apply to the Court to be removed (and replaced if required). The role as executor will continue for a long period of time, for example where the estate holds a property and a beneficiary has a life interest to live in it, or there are minor children not due to receive their inheritance until a certain age.  If this is the case and you no longer want to be an executor, then provided the estate administration steps have been completed (gathering of assets, paying debts), then it is possible for an executor, who is now technically a trustee of the estate, to retire and another to be appointed by Deed rather than involving the Court.  Frequently we see executors retire in this situation and an independent trustee or trustee company is appointed to continue the ongoing management of the estate and manage the obligations to beneficiaries. How to get important information The best way an executor can obtain information about the Willmaker’s assets and liabilities would be before death.  If you find yourself aware that you are an executor of an estate, have a conversation with the Willmaker. Where do they keep their bank statements or passcodes if you need to locate them, who is the property insured with?  Make sure that if there are any updates that you are aware of these. It pays to have an updated Will, necessary statements or instructions for the executor and to have regular conversations about what you would like to have happen when you die. Talk to our succession and estates team about your options and to obtain the right advice for you.

Making sure you have a Will in place is one of the most valuable actions you can take to support and guide your loved ones after you pass away. In your Will, you can decide who is in charge, and instruct exactly how your assets should be dealt with when you die. When you have a Will, the process to administer your estate is generally cheaper and quicker. Without a Will, your assets are distributed to eligible family members according to the legal framework in the Administration Act 1969 (“Administration Act”), which may not work out how you think. The process is more complicated, takes longer, is generally more expensive and you have no say over who is in charge and who gets what. What is the process if you die without a Will? This is called \"dying intestate\". If you own assets over $15,000, then an application to the Court for Letters of Administration will be required. A person with an interest in an estate (i.e a surviving partner or spouse, or children) can apply to administer an intestate estate. The right to make the application is in order of priority under the Administration Act 1969. Some of the fundamental rules of the Administration Act 1969 are: If you have a husband, wife, civil union or de facto partner, but no living parents or children, the spouse or partner will get all of your estate. If you have a spouse or partner and also children, the spouse or partner will receive all of the personal chattels, the first $155,000 of your estate and 1/3rd of the remaining property. The other 2/3rds will go to your children. If you have a spouse or partner and no children, and living parents, the spouse or partner will receive all the personal chattels, the first $155,000 of your estate and 2/3rds of your remaining property. The remaining 1/3rd will go to the surviving parents. If there are children, but no husband or wife or civil union or de facto partner, your estate will go to your children. Before an application is made, a search has to be conducted to confirm that no valid Will exists and a search to confirm the status of children entitled to inherit. Consents from interested family members who are not applying (e.g. other children entitled to inherit) also need to be obtained. The process could become even longer and more complicated if there are disagreements about who should apply. All of this slows down what could otherwise be a straightforward process. How does this differ if you die with a Will? A Will appoints executors who have the authority to apply to the Court for a Grant of Probate, and then deal with your assets in accordance with the wishes you set out in your Will. Unlike Letters of Administration, there is no need to obtain any searches or consent, and there are no rules around who you have to leave your estate to, although you have a “moral duty” to include children and spouses/partners in some way. An application for Probate is generally cheaper and quicker. Most importantly, it puts you in control of where your estate goes. In your Will you can: Give away specific chattels i.e  jewellery, watches, cars, artwork, heirlooms, pets (yes, these are chattels) Specify gifts such as cash sums, shares Decide who will receive the balance of your estate Indicate burial wishes Nominate a legal guardian for your children if they are minor What happens in an estate administration? Assuming you have over $15,000.00 in your sole name (remembering that joint assets pass to the other co-owner automatically), then the administrator must visit a lawyer who will help them apply for a grant of Probate (if you have a valid Will) or Letters of Administration (if you die intestate). After the Court has approved the application, the administrator must find out what the assets and liabilities of your estate are and, if necessary, have assets valued and sold. Then they must pay any debts and taxes out of the estate funds. The balance is then paid out to the beneficiaries in terms of either the Will or the Administration Act rules. Generally this does not occur until at least 6 months from the date of the grant. This is because the administrator can be personally liable for distributions made within 6 months, in the event there was a claim on your estate (this could be a debt or it could be a claim by a family member). The estate could take much longer to distribute if there are a number of assets to be sold and debts to be worked through. If there is a claim on an estate, distribution could take several years. Contact our succession and estates team if you would like to discuss this further. This article was first published for First Mortgage Trust, October 2024 newsletter.