Updated: 10:52am – If you think I am going to tell you about life after death then you absolutely correct! Just not in the way you though. I am going to tell you about what your loved ones are going to go through when you pass away.
You’re not like the rest your thinking. You are one step ahead, you have made your Will and accordingly all your assets are secured for your loved ones? Think again. Most of us think Wills are the end of sorting out our families affairs for when we are gone but little do they realise in many cases your Will is the beginning of a number of issues for your loved ones when you pass away.
What happens to your Will when you die?
Once you pass away it is normally your next of kin, either your Spouse/ Partner or you Children who will contact the Lawyer who holds your original Will to let them know you have passed away. This normally occurs some weeks after your funeral because let’s face it, calling your lawyer will not be anybody’s priory in a time of grief.
What happens next to your Will usually depends on the value of your combined assets. If your assets is worth more than $16,000.00 then your Will needs to be sent to the High Court with an application for Probate. Your lawyer can arrange this and the process is generally straight forward.
Your Estate is then advertised (usually in the NZ Herald) as a public notice to any creditors or anyone who believes they have an interest in the estate. The estate must then not be distributed until 30 days has lapsed since then Public notice was advertised to allow any claims to be made against your estate.
Who can Claim against your Estate
Technically speaking anybody can make a claim on your Estate. Does this mean they will receive a benefit from your estate? Absolutely not. They would need to firstly give notice to the executor that they have a claim. This would need to be in writing, if the family believe that indeed the claimant has a valid claim they may wish to enter into a deed of family arrangement to allow the claimant a share of your estate.
However most times families do not wish to do this believing that the deceased did not leave a provision in the Will for the claimant and therefore they wish to honour the deceased’s wishes. The most common claims I see as a Lawyer are from illegitimate children (that nobody knew existed), De-facto Partners (that the family were not aware off) and siblings who have been provided for unequally in their parents Wills.
What happens if someone makes a claim against your Estate
If no Deed of Arrangement is entered into then either the claimant or the executor of the estate can file proceedings in Court to deal with the dispute. After hearing all the evidence and applying the Law the Court will decided if the claimant should receive a benefit from the estate and if so how much. Each claim is looked at individually and on its own merits and the outcome will depend on the facts of the case in relation to the Laws of New Zealand.
A costly affair
Regardless of whether the claimant is successful or not is another issue but the Legal costs involved in the process of a disputed estates is extremely high. You are easily looking at thousands if not tens of thousands of dollars in legal fees and this process. In many cases there are a number of lawyers involved as more than one party can claim on the estate making it even more complicated.
How long does the process take?
An estate that becomes contested can easily take up to a couple of years (if not longer) to resolve. This will mean that your loved ones may not have access to any of your assets or funds until such time as the disputes are resolved and the estate is distributed. I have personally acted for estates that have taken up to five years to resolve.
Does this mean that there is no way you can protect your assets and ensure they end up with the people you wish to leave them to? Of course not. There are definitely ways of asset protection so make an appointment with your Lawyer to discuss how you can ensure your estate does not end up being contested.
I know I may have scared you into thinking there’s no point having a Will, but please don’t get me wrong, Wills have their problems but it is still better to die leaving a Valid Will then nothing at all.
-Farah Khan
