Rebecca Steens

Qualifications

LLB (First Class Hons), BCS, University of Waikato 2012
Admitted to the Bar in New Zealand 2013

Community & Industry Activity

Member of the Law Association of New Zealand Trust Law committee

Contact

DDI: +64 7 570 0687
M: +64 27 464 2966
E: rebecca.steens@hobec.co.nz

Rebecca is an estates, trust and elder law specialist. With a background in contentious trusts and estates, Rebecca brings a unique and practical perspective for her clients.

Rebecca advises on:

Estate Planning – Wills, Enduring Powers of Attorney, Advance Care Plans & Living Wills
Estate Administration – Probate, Letters of Administration, Letters of Administration with Will Annexed, Exemplification of Probate, Reseal of Probate, preparing Deeds of Family Arrangement, supporting executors in contentious estates
Trusts – formation and administration including facilitating AGMs, reviewing and updating trust deeds and memorandums of wishes, making applications to the High Court for variations to trust deeds, advising trustees of their obligations and where necessary making applications for directions to the High Court, advising Beneficiaries of their rights, considering the overall purpose of having the trust (including creditor protection, succession, tax issues) and facilitate wind up
Elder Law – advising on the use of family trusts, Wills, Enduring Powers of Attorney, working with medical practitioners
Occupation Right Agreements (aka Licence to Occupy) – regarding Retirement Villages or Rest Home Care Units

Prior to joining the estates team, Rebecca had 8 years of experience in estate and trust litigation, including four years at an Offshore firm in Jersey, in the Channel Islands. Rebecca has brought this experience back to Tauranga and works closely with Holland Beckett’s family and litigation teams.

Rebecca is a Tauranga local. Outside of work she enjoys spending time with her young family and getting outdoors to cycle and run.

Rebecca Steens's Expertise

Estate Administration

Trusts, Asset Protection & Estate Planning

Rebecca Steens's News & Resources

Estate Administration – with or without a Will

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. This article was first published for First Mortgage Trust, October 2024 newsletter.

Why do I need an Independent Trustee?

Many people question, what is an independent trustee, what do they do and what value do they bring to my trust? What is an independent trustee? An independent trustee is a person or entity who act as a trustee of a Trust where that person or entity has no interest in the assets of the Trust - meaning they are not a beneficiary of the Trust and are not entitled to share in the assets of the Trust. An independent trustee is often a ‘professional trustee’ such as a lawyer or an accountant. However, a trustee does not have to be a ‘professional’ to be independent, they just have to be a person who is not a beneficiary of the Trust. Why should you have an independent trustee? Having an independent trustee is not a legal requirement under the Trust Act 2019, however is recommended for the following reasons: More credibility for the Trust and is less likely to be susceptible to any successful legal challenge in the future; Adds an element of transparency to the Trust, so if any third party is looking at the Trust they can see that there is an independent person who is moderating the decisions of the trustees and ensuring the Trust is not regarded as a ‘Sham Trust’ and therefore losing any protection the Trust was intended to provide; Assists in the better management and administration of the Trust. As outlined above, often the independent trustee is a solicitor or accountant who is familiar with trust legislation and can ensure that the Trust is complying with the Trusts Act 2019. They also may have an ongoing relationship with the family which supports an understanding of the underlying reasons for the Trust; and Some trust deeds require the Trust to have at least one independent trustee. Having a Trust to protect assets will only work if the trustees carry out their functions correctly, which includes administering the Trust properly. This is where an independent trustee can assist the other trustees by ensuring the Trust and trustees meet their legal duties and responsibilities. The implementation of the Trusts Act 2019 has increased the scrutiny on Trusts, trustees’ duties and increased potential liability. These changes require independent trustee(s) and independent trustee companies to be more active in the administration of and record keeping for your Trust. As a result, there are a number of independent trustees who are either resigning, declining to take on new Trusts, or are charging an annual fee on the basis of the independent trustee services. Now is as good a time as any to consider whether an independent trustee is required for your Trust, and to review your trust deed and individual situation to make sure your Trust is fit for purpose and complying with current requirements under the Trusts Act 2019.

The Last Lost Will – How to find a missing Will?

We often get enquires for missing Wills. (Of course, these are not Wills that we have drafted - those are safely stored in the Holland Beckett deeds safe.) Locating a missing Will can be very stressful and locating the original requires a systematic search. If you know someone had a Will, the search must commence - without it, obtaining a grant of Probate is much more complex. If you have a copy of the will, you may be able to seek Probate of a lost Will. If the will does not surface, could it be that the person never did a Will? If so, an advertisement (discussed below) must be advertised before a grant of Letters of Administration will be issued by the Court. If a Will cannot be found, the estate may have to be distributed according to New Zealand’s intestacy laws. How to find a missing Will: Check personal records and safe places: Search the deceased’s home and personal papers. Look in safes, safety deposit boxes, and any hidden or secure places where important documents might be stored. Family and friends: Sometimes family members or close friends may have a copy of the Will or know where the Will might be. Contact their lawyer: Reach out to the lawyer who may have drafted the Will. Lawyers often (and in our view should) keep copies of their clients’ Wills. High Court: If the Will has been probated (or perhaps it was made and sealed via Court proceedings - more on this another day), the High Court might have a copy. Contact the High Court in the region where the deceased lived. Law Society advertisement: If you are unsure which lawyer might hold the Will, contact the New Zealand Law Society to place an advertisement in newsletters received by all lawyers. You can contact the Law Society to advertise for a will here: NZLS | Advertise for a will (lawsociety.org.nz) As a matter of good practice, a lawyer will not release details of a Will to anyone - that is confidential to the Will-maker during their lifetime and when they have died, it is up to the executors. The above also illustrates the need to talk to your friends and family about your Will, and where to find it should they need to. This can alleviate a lot of stress during what will be a difficult time. For any Estate and Will queries, get in touch with our specialist team at estates@hobec.co.nz.

Succession Planning – Case Study: John Johnson

John Johnson is a 68 year old widower. He has a complying Family Trust that owns the majority of his assets (only his KiwiSaver is in his personal name). The Trust was established several years ago when John operated a business, for creditor protection. On his death, John intends for all his personal assets and the assets settled on the Trust to be divided equally between his daughters, Sandy (who lives in Sydney) and Wendy (who lives in Wellington). John’s lawyer says it is generally not advisable for overseas family members to: be the executors of your Will; or be appointed as your attorney for either property or your personal care and welfare matters. Having received advice, John has nominated Wendy alongside his solicitor, as his executors and trustees. For his Enduring Power of Attorney documents, John appoints Wendy and a family friend who are based in New Zealand. John is also advised about the Trust Act 2019, which has placed increased obligations on trustees by introducing, amongst other things, the presumption of making basic Trust information available to all beneficiaries (whether they are likely to benefit or not) and the duty to invest Trust assets prudently. John’s lawyer suggests that now would be a good time to review his Trust to determine whether: the Trust is still needed; whether trustees are meeting their obligations; and whether the Trust Deed can or should be varied to reflect the changes introduced in the Trusts Act 2019. The advice to John is that if you don’t have a Trust for a really good reason, like asset and creditor protection, a Trust may just be another unnecessary and costly complication in life. As John no longer operates his business, he does not need the Trust for creditor protection. However, John’s lawyer indicates that there may be benefits in keeping the Trust for residential care. In John’s case, he is likely to obtain a residential care benefit by keeping the Trust, because his personal assets fall under the threshold of $273,628, his only income is superannuation, and the Trust assets were gifted some time ago in line with MSD’s gifting rules for the residential care subsidy. The lawyer advises that there are other estate planning options to maximise residential care benefits for couples without a Family Trust. For example, if a couple’s main asset is their home then they could consider life interest Wills so that if the survivor of them needs care, half of the equity in the property is protected. Where a single person owns a property in their personal name there are less options. Tax is also a consideration. John is advised that in many overseas jurisdictions, distributions from Trusts are taxed more harshly than distributions from a person or from their estate. John is cautioned that if Sandy from Sydney is to receive a distribution from the Trust (rather than his estate), there may be tax consequences. He is advised to speak to his accountant about this. Ultimately, John would have to weigh up the potential benefit of keeping the Trust in the case that he went into residential care, against the potential tax consequences for Sandy. John suddenly passes away. Wendy from Wellington receives a half share of the Trust assets and estate assets without any deduction (as generally in New Zealand there are no tax consequences for receiving a Trust capital distribution). However, in accordance with Australian tax rules Sandy from Sydney’s half share is taxed as income and she therefore receives a significantly smaller share than her sister. Succession planning – Is it time to review your affairs? As your circumstances change, your Will and wider estate planning (such as Family Trusts and Enduring Powers of Attorney) should be reviewed. It may be that what once was suitable for you and your family, is no longer practical. Here are some important events that should trigger a review: change in relationship status (for example, a marriage will automatically revoke your Will but a separation will not); change in financial situation; change in health (yours or your families); sale or purchase of a property; births/deaths; family members moving overseas; and law changes – such as the Trusts Act 2019. If it has been a while since you last reviewed your estate planning, or if you have had a change in circumstance, we encourage you to speak to a professional about reviewing your wishes. In particular, if you have overseas family members, chat to your lawyers about your estate planning to ensure unnecessary cost and complications are avoided.

Wills and new relationships

How to avoid disinheriting your children without leaving your new partner high and dry. If you have children from a prior relationship and a new partner it is important your Will balances the needs of your partner and children and each of their potential claims against your estate. Family Protection Act 1955 obligations Under the Family Protection Act, a person has a moral obligation to adequately provide for certain people in their Will. These people include partners, children and grandchildren. What is adequate depends on the circumstances, such as the size of the estate, the individuals needs and the needs of the other beneficiaries. While you have a moral obligation to provide for your children in your Will, your partner usually does not have a moral obligation to provide for your children in their Will, unless they are minor or dependents when you pass. If your Will leaves everything to your partner then: If your children make a claim against your estate – they have a good chance of success as they have been left out of your Will. A claim is stressful for all involved, diminishes the value of your estate and can be detrimental to relationships; and If your children do not make a claim against the estate – they might be left something in your partner’s Will, but your partner could later change their Will to exclude your children and your children would not be entitled to make a claim against their estate. Property (Relationships) Act 1976 Unless a valid Contracting Out Agreement or Relationship Agreement is in place, a surviving partner has the right to choose whether to (A) make an application to the Court to divide the estate in accordance with their relationship property entitlement or (B) accept their gift under the Will. It is important to understand that your assets are not just at risk in the event of separation, but also on death. For this reason, it is important to have relationship property advice to ensure your wishes are honoured on separation or death. Possible Will structures Here are three common Will structures for second or subsequent relationships. 1. Mirror Wills You and your new partner create Wills leaving all assets to each other in exchange for a mutual promise that when you both pass your assets will be distributed in a certain way (for example, 50% to your children and 50% to your partners children). This creates a binding obligation on the survivor not to change the ultimate beneficiaries of their Will. The Wills can be updated provided you both agree during your lifetimes. At its best, this structure gives the survivor a comfortable lifestyle while providing your children with reassurance that they will be provided for in the end. There are some difficulties with this including: Disgruntled children may still make a claim under the Family Protection Act. Speaking with your children about your Will can be helpful as it manages their expectations and prevents the feeling of a nasty surprise when you pass. Alternatively, you can make all of your assets joint in an effort to prevent a claim – as joint assets pass automatically to the survivor, making it much harder to make a claim. While the survivor might not change their Will, the assets may be depleted during their lifetime so that your children receive a much lesser amount than you intended. 2. Early gift to children and residue to spouse Your Will can leave a gift to your children (such as your Kiwisaver, a cash gift, a percentage of your estate or a life insurance policy) and the residue to your partner. This ensures your children receive something now while your partner still receives enough to comfortably live on. If desired, you can use a combination of an early gift and mutual Wills so that your children receive something now and when you both pass. 3. Life interest Wills This is perhaps the most certain way to provide for your partner during their lifetime and your children when both you and your partner pass. Usually a life interest Will allows the survivor to live in a property (or substitute residence) for the rest of their lives on the basis they pay for outgoings. A life interest can also be over the whole estate, so that the survivor can live off any income generated from other assets (such as the proceeds of any bank accounts and investments). This can also be beneficial for the survivor if they go into residential or hospital level care, as it will reduce the assets they own in their own name. A life interest Will can be beneficial, but can also add cost and complication. A life interest creates a Trust and, for the rest of the survivor’s life there would be trustees involved in key decision making (such as selling and buying a new residence) and possibly ongoing tax returns for the estate. Speak to a professional If you have children from a prior relationship and a new partner, we can help you plan for the future in a way that protects all the people you love. Holland Beckett can assist with preparing your Will or reviewing an existing one. If you have any queries please reach out to a member of our team. We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started

How can I challenge a Will?

If you feel like you haven’t been properly provided for by a close family member or friend, you are able to apply to the Court for this to be changed. This can be done in a number of ways, but the two main laws are the Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act 1949 (TPA). Who is eligible to make a claim? Under the FPA, spouses, civil union partners and de facto partners of the deceased are all eligible to claim. Children, grandchildren and step children who were being wholly or partly supported are also able to claim. Parents of the deceased are only able to claim in limited circumstances. Under the TPA, any person who has been promised provision under the will can make a claim. However, claims usually come from relations not provided for under the FPA, or close family friends. Is there a time limit on making a claim? Under both the FPA and the TPA, you have 12 months to lodge a claim. However, we recommend that you file a claim as soon as possible to make sure that all of the Estate assets are available. How can I claim under the FPA? The FPA gives specified family members the right to apply for provision out of a family member’s estate. The purpose is to ensure that family members receive their fair share of an estate and are adequately provided for by the deceased. This is because the FPA creates a moral duty, for example from a parent to a child. If you make a claim, the Court will consider whether adequate and proper provision has been made for your maintenance and support. This means the Court will consider factors such as the relationship between you and the deceased, the size of the estate, your financial need, and any ethical elements such as your right to feel a sense of belonging to the family.. A claimant in need (whether financial or otherwise) will have a stronger claim. How can I claim under the TPA? Under this Act you will need to prove that the deceased made you an “express” or “implied” promise of reward for the work you did. If this is proven, then the estate will have an obligation to make a reasonable award to you. To succeed in a claim under the TPA, a person must show that: Services or work were rendered by you to the deceased in the deceased’s lifetime; There was a promise from the deceased to you in reward for the services; There is a connection between the services rendered and the promise; and The deceased failed to make the promised testamentary provision or otherwise remunerate you. The term “services” essentially means work. It has been given a broad definition by the Courts, and includes physical work and even emotional support where it goes above and beyond what would usually be expected. A “promise” means any statement or representation of fact or intention. The promise can be expressly made, or it can be implied. Unfortunately, these sorts of claims can be difficult to prove. If there is information to support a promise being made (ie. some evidence in writing), or other witnesses who heard the promise being made, this will help with proving the claim. The Law Commission has recently reviewed succession law, and has recommended a new Inheritance Act to replace these Acts. This reform is expected to take several years, so it will be some time before we see any changes.

Will Drafting – Our Top 5 Tips

A well drafted Will reduces the time, money and stress of administering your estate when you pass. At Holland Beckett, we take the time to ensure that your Will suits your circumstances, while keeping it simple. Below are our top 5 tips to ensure that your Will is fit for purpose: 1. Choose the right executors and trustees of your Will The executors and trustees (“Trustees”) carry out the terms of your Will. Trustees must be neutral between the beneficiaries (not biased) and make decisions together. We recommend that you pick two Trustees who live in New Zealand, can work well together and are neutral towards your beneficiaries. This will help to make the administration of your estate straightforward and cost effective. Where possible at least one Trustee should be younger than you, as it can complicate matters if your Trustee(s) have already passed away before you. If your Will is complex or you think that there may be a dispute in the family after you die, then you could consider appointing an independent professional as your Trustee. 2. Dealing with personal items When it comes to distributing personal items there are typically two options. The first, is to leave everything to a person or group of people and let them sort it out. The second, is to list what you want to do with each valuable or sentimental item. If you prefer the second option, rather than listing each item in your Will, you can leave your personal items to your executors to distribute in accordance with any wishes you make known to them. You can then make a list which can be updated at any time, without the hassle and expense of updating your Will. The list should be kept in your lawyer’s deed safe with your Will. 3. Cash or percentage gifts We recommend that you do not leave a cash gift in your Will. This is because, over time, circumstances can change and that gift may become a much larger or much smaller portion of your estate than you intended. Instead consider leaving a percentage of your estate. For example, instead of giving $10,000 to each of your grandchildren you could consider giving a percentage of your estate equally to your grandchildren. This means the gift will increase/decrease proportionately. 4. Understand how your property is owned If you are leaving everything to your partner, check to see if your property is jointly owned. Jointly owned property (property ownership as joint tenants) passes automatically to the survivor, which makes for a quick and hassle free process. Any asset over $15,000 requires an application for probate (Court authority) to deal with that asset. Check how your insurance policies are owned. If you own the policy, your estate will likely need to apply for probate and the proceeds will be distributed in accordance with the terms of your Will. If the policy is jointly owned, or owned by someone else, then that person may be able to access the policy straight away. If in your Will you leave your partner a life interest to live in a property, that property should be owned as tenants in common (where you each own a share). 5. Understand your debts If you want to leave a vehicle or property to a beneficiary that is under finance, consider how the debt will be repaid – does your estate have enough to repay the debt? Are you giving that particular property to the beneficiary on the condition they take on the debt? Unfortunately, even the most carefully crafted Will can become impractical or even void if your circumstances change. While we try to plan for this with our Will drafting, if you have any major change in circumstance - such as a birth, death, marriage, separation, divorce or a family member moving overseas – you should have your Will reviewed and potentially updated. Holland Beckett can assist with preparing your Will or reviewing an existing one. If you have any queries please reach out to a member of our team. We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started

The A to Z of Estate Administration

Dealing with a loved one’s passing is a difficult time. At Holland Beckett, we aim to make the estate administration process as simple as possible. In this article we explain, in plain English some of the common legal jargon that you might encounter in the estate’s administration process. Affidavit: A sworn statement for the purpose of being filed in Court. Bequest: A gift made by a person in their Will. Beneficiary/Cestui que trust: A person with an interest/entitlement under a Trust or Will. Capacity: Legal competence to enter into a legally enforceable arrangement. Those who are under 18 do not have legal capacity. There are some exceptions, for example an attorney under the Protection of Personal and Property Rights Act 1988 must be at least 20 years of age. Codicil: A document which adds to or makes changes to a Will. Common form: The standard form of application for probate which is not contested or opposed in any way. Devise: A gift of land in a Will. Disclaim/Renounce: To relinquish/refuse a legal claim to something. For example, an executor may renounce as executor which means they step down from their role and a beneficiary may disclaim/reject a gift made to them under a Will. Estate: Everything that a person owns in their own name at the date of their death. Execution: The act of signing a document in a way required by law. This also includes requirements for the document to be witnessed. Executor: An executor is the person who is appointed by the Will-maker to administer the estate. Issue: All of a person’s descendants (children, grandchildren etc). Intestate: When a person dies without a Will. Legacy: A gift in a Will, usually money. Letters of Administration: An application for administration of an estate where a person has died without a Will. Alternatively, there can be an application for letters of administration where there is a Will but the executor named in the Will has died or for whatever reason, will not apply for probate. Life interest: A grant of the right to use all or part of the estate for the remainder of that person’s lifetime. For example, a Will-maker might leave a beneficiary the right to live in their property for the rest of their lives. Probate: The application to prove or verify a person’s Will and obtain Court authority to act as executor. Residuary beneficiary: A person who will receive a benefit from the remainder of an estate after specific gifts, debts and expenses have been paid. Residuary estate: What remains of an estate after specific gifts, debts and expenses have been provided for. Solemn form: Where probate of a Will is opposed or there is doubt whether probate should be granted. It then involves a hearing before a Judge. Testamentary: Arising under a Will. For example, a testamentary trust is a trust arising under a Will. Testamentary capacity: Competence to make a Will. A Will-maker must be of sound mind. Testator/Testatrix: The male and female words for a Will-maker. It is now more common to simply refer to the person as the Will-maker. Whilst some of the legal jargon is part of the process, we make sure our clients understand the steps in the estate administration process in a plain and simple way, to ensure they understand what is required from them at such a difficult time. If you would like advice regarding an estate or estate planning our specialist team is here to help.

I am the executor named in a Will, now what?

If you have been appointed as an executor of a Will, then when that person dies you are responsible for administering their estate and carrying out their wishes according to the Will. You may not have known you were an executor (surprise!). Or, you may have been fully aware of this and had discussions with the Will-maker about what they wanted to happen. An executor’s role can be very straightforward, or it can be fraught with conflict. Read on to find out how to deal with all potential eventualities . Locating the Will and understanding the terms You should locate the original Will and ensure you understand its terms, for example, what happens if a beneficiary has passed away or if the beneficiaries are still minors. The estate’s lawyer can assist with any interpretation issues. It is very important that you keep the Will in a safe place and do not alter or mark it in any way. Assisting with funeral arrangements As executor you have the authority to make decisions about the funeral and what to do with the body (ie. cremation or burial). Sometimes there will be funeral instructions in the Will, a pre-arranged funeral plan or the family may be aware of funeral wishes. If you are an independent executor, you may leave the decision making to family. The Court has determined that where there is no agreement regarding where a body is to be buried then the executor’s rights and duty to dispose of the body apply, and the executor will make the ultimate decision. Identifying assets and liabilities of the estate You must identify the assets and liabilities of the estate such as bank accounts, property, insurance, shares, income streams and debt. If the estate has an asset worth more than $15,000, then you must engage an estate lawyer and apply for probate. Probate gives you, as executor, authority to deal with the assets of the estate. Applying for probate The Court ensures that an estate is not left unadministered where an executor refuses or neglects to carry out their duties. If you fail to apply for probate within three months from the death of the Will-maker, any other executor, or any other person interested in the estate, can make an application to Court to be appointed as your replacement. The Court will give you the opportunity to respond, or to formally step down. If the Court does not hear from you, then an alternative executor will be appointed by Court order. The Court has the power to remove you and appoint a replacement. For example, there may be conflict issues between you and another executor, or a family member or other interested person might take issue with your appointment. This will involve a Court hearing if you wish to defend your position, or you do not reach an agreement to step down. Often the appointment of an independent person can resolve conflict issues. Securing and insuring property 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. Notifying Relevant Parties You or the estate’s lawyer should notify relevant providers of the passing, such as the estate’s bank, insurer, WINZ (if a benefit was being received), IRD and any other asset providers or debtors. You must also notify the beneficiaries of the Will and make relevant disclosures to them. Your estate’s lawyer can assist with this. Risks facing executors Potential arguments can arise between family members who may be unhappy with the terms of the Will. The Court can become involved where an interested party makes a claim on the estate. As executor you are named as a party to the claim and are required to participate in the Court process. You are under a duty to take account the interests of potential claimants on an estate and therefore can be held personally liable to the beneficiaries or potential claimants for distributions made within six months from the grant of probate. Due to this potential liability, it is strongly advised that estate’s assets are generally not distributed until the expiry of six months. In practice, estates can take several years to distribute. 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. The Court of Appeal has confirmed that an executor must be even-handed when dealing with beneficiaries/claimants and must not actively or dishonestly conceal relevant information about the estate. As executor, you are required to act with neutrality and independence, while doing your best to follow the wishes of the Will-maker. 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. Although uncommon, you may also be required to act on the interests of minor children or mentally disabled persons who are otherwise entitled to make a claim. Where the Will leaves a life interest, you as executor become the trustee for that life interest, and your duties and obligations continue. These extend to duties under the Trusts Act 2019. Talk to our estate planning team about your options and to obtain the right advice for you.

Why do you need a Will?

Your Will contains your instructions about what you want done with your property when you die and how you want those that depend on you (your spouse, de facto partner, children, etc) to be looked after. It is important to consider what happens if there is an unexpected change in circumstances, if you become seriously ill or pass away. If you have not planned properly for the future, decisions about your affairs will be made by someone else - and those decisions may not reflect your wishes. As far as you and your family are concerned, it could be the most important piece of paper you ever sign. Why do you need a Will? Even if you don\'t own major assets, you can quite quickly build up possessions that have some sort of monetary or sentimental value to you. Having a Will allows you to decide what will happen to your belongings and give some thought to sentimental items. Without a Will, your assets flow according to the legal framework in the Administration Act 1969, and for many people, what the law says might be quite different from what you want to happen. A Will might relieve financial and emotional strain on your family after your death and help minimise the likelihood of disputes about how your estate is to be divided up. A Will does not necessarily prevent any disputes, however a Will that is well considered and with clear reasons, should give you more control over the destination of your property. Legal advice will ensure that your Will is validly executed and achieves your succession goals. It can also help you to minimise the chances of your Will being challenged. What should your Will include? The following matters should be covered off in your Will: Your Will should name at least one executor, ideally two, preferably who live in New Zealand. They are: responsible for seeing that your wishes, as expressed in your Will, are carried out; and who will administer your estate until it is all distributed. Your Will should provide for payment of your liabilities. It should make adequate provision for your partner and children. It should cover off who you would want to inherit your property and possessions, and any specific gifts for family and friends. You might consider naming preferred guardians of your children. You can also set out any specific funeral arrangements, although those organising your funeral are not legally bound to follow these instructions. You can give directions as to how a business you own should be dealt with when you die. Your Will can also include a bequest or a gift to charity. You can also deal with any interests in Māori land in your Will as long as the people receiving the interest are entitled to do so under the Te Ture Whenua Māori Act. As your circumstances change you should consider updating your Will. If you get married or enter a civil union your will is automatically revoked. Read more on wills and relationship changes here. If you have a Will then you’re already one step ahead. But is your Will up to date? When was the last time you reviewed the terms of your Will? A Will can be challenged The law recognises that if you have a partner, child and grandchildren they should be acknowledged in your Will when you pass away. If your Will does not adequately provide for your partner, children or grandchildren (and in some circumstances your step-children) then there may be arguments after you die and a Court could be asked to decide what should happen. Your Will can be invalid if it does not contain certain formalities, or was prepared when you did not have capacity or you were forced into signing it. Therefore, it is important not only to have a Will, but to ensure that it is well prepared to best give effect to what you want and avoid arguments later on. Holland Beckett can assist with preparing your Will or reviewing an existing one. If you have any queries please reach out to a member of our team. We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started

Enduring Powers of Attorney

An Enduring Power of Attorney (“EPA”) is a legal document which sets out who can take care of your personal or property matters if you are unable to. The person named in the EPA is called your attorney. These documents can be organised through your lawyer and are governed by the Protection of Personal and Property Rights Act 1988. What is a Power of Attorney? In New Zealand there are three kinds of Power of Attorney (“PA”) which can be enacted for a range of reasons and to deal with different aspects of your affairs: A standard PA; An EPA for property matters; and An EPA for personal care and welfare. An EPA takes effect when you lose capacity and are unable to make your own decisions, and continues despite your loss of mental capacity. However, you may elect for an EPA for property matters to come into effect before you lose mental capacity. A person is presumed to be mentally capable unless it is proved otherwise. A Court or qualified health provider makes a decision about whether someone is mentally incapable. Standard PA A standard PA is useful for when you are physically unable to sign documents, which could be due to geography (eg. you are out of the country) or disability (eg. you’ve lost use of your arms). A standard PA can also help with specific tasks on a regular basis, such as allowing your attorney to pay your bills or sign transactional documents on your behalf. Under a standard PA, your attorney is provided with the right to sign documents on your behalf, but this is immediately revoked if you die or if you lose mental capacity. You can also specify that a standard PA only have effect for a specified time period (for example, the duration of an overseas trip). EPA for property matters An EPA for property matters provides your attorney with the power to make decisions relating to your money and property. An EPA for property matters can be used immediately or only if you lose mental capacity. An EPA does not assume that mental capacity is permanently lost, if capacity is regained, the attorneys authority can be revoked or suspended. For this type of EPA, you can have one or more attorneys, or a trustee corporation to act as your attorney. EPA for personal care and welfare matters An EPA for personal care and welfare authorises the attorney to make decisions relating to your health and welfare, such as choosing a rest home or medical treatment. An EPA for personal care and welfare matters can only come into effect if you lose your mental capacity. For this kind of EPA you can only have one individual as your attorney, you cannot appoint two persons or a trustee company. You can however, appoint successor attorneys. EPA and Trusts None of these legal documents are particularly useful when it comes to Trusts. An EPA for property cannot be used to make trustee decisions or deal with Trust property. This is because the trustee is not making decisions in their personal capacity and the Trust property is not the personal property of the trustee. The Trusts Act 2019, which came into force on 30 January 2021, makes the process of removing an incapacitated trustee easier. Rather than going to Court, the following people can remove a trustee: The person with the power of appointment of trustees; or, if there is no appointer: The continuing trustees; or if there are no continuing trustees: The person holding an EPA for the incapacitated trustee. When an existing trustee retires or is removed, or a new trustee is appointed, executing the deed of appointment, removal, or discharge has the effect of removing ownership of the Trust property from the previous trustees and vesting it in the new or continuing trustees without the need for any transfer, conveyance or assignment (subject to any mortgage or liabilities attached to the property). If the divesting and vesting need to be notified, recorded or registered under another Act, such as the Land Transfer Act, a copy of the deed and a statutory declaration by the new or continuing trustees is enough to achieve the change in title. The new and continuing trustees can complete any formal requirements on behalf of a former trustee who has lost capacity. What if I don’t have an EPA? If you lose your ability to make your own decisions, you may no longer be able to manage your affairs by yourself. For example, you may not be able to sell your house, manage your bank accounts or make important decisions concerning your health, living arrangements or related care decisions. If this happens, it is too late to sign an EPA. It will then be up to somebody else, such as a relative, a social worker or a medical practitioner, to make an application to the Family Court for somebody to be appointed to make decisions for you (called welfare guardians and property managers). Unlike an attorney under an EPA, a welfare guardian or property manager is required to apply to the Family Court for a review of the order appointing them at least every 3 years. Setting up an EPA can therefore save your family from the stress and cost of applying to the Family Court to ensure you are looked after. How do I get an EPA? Think carefully about who you might like to appoint as your attorney (or attorneys), and whether you would like anybody else to have oversight of your attorney’s decisions. It is important that you appoint somebody you trust to understand and respect your wishes, and make important decisions that will affect you. You will then need to contact a lawyer or other authorised person to help you create your EPA. You can contact Holland Beckett for assistance.