New Zealand Guardian Trust - FAQs

Guardian Trust

Wills

Wills

		If I prepare a new Will, do I need to advise the people who prepared and hold my previous Will?
		Whilst your last dated Will will be the Will in terms of which your estate is administered and distributed, it is advisable to notify the holder of your previous Will that you have prepared a new Will. This will avoid any confusion about where your last Will is held at what will be an emotional time for your family.

		When should I review my Will?
		It is important to update your Will whenever there are major changes in your circumstances. These might include: Having children or grandchildren The death of a loved one Marriage, remarriage, separation, divorce, starting a de facto relationship Acquisition or disposal of any major assets Establishing a family trust Any other changes that might affect your wishes. Regardless of major changes in your life, we recommend you review you Will every three years. As a client of Guardian Trust, we will automatically include you in our Wills review programme which involves prompting you at regular intervals to review your Will and make any alterations to meet your wishes and any changes in your circumstances.

		Can I appoint anyone as my Executor and trustee?
		You can appoint anyone to be your Executor and trustee as long as they meet the following requirements: The appointed person must be an adult – you cannot appoint a child They must be of sound mind The person should be of sound financial standing It is preferable for the appointed person to be resident in New Zealand in order for the courts to accept that they will be able to carry out their duties. When choosing your Executor and trustee, you should bear in mind that friends and family may not be able to act impartially towards your beneficiaries and they may not have the necessary expertise to administer an estate. A professional Executor such as Guardian Trust offers permanence - we won’t die, give up or go away. Guardian Trust is a statutory trustee company and this means peace of mind for you, the client, knowing we must perform to the highest standards expected of a professional adviser.

		What should I look for when choosing an Executor for my Will? Why is it so important?
		Choosing the right Executor is important because they will take full responsibility for protecting your assets and making sure they are properly managed, verifying and paying your liabilities, dealing with your family and beneficiaries sympathetically and impartially, overcoming legal difficulties and carrying our your wishes in terms of your Will. So it is important your Executor meets these requirements: Ability – Estate administration covers a range of specialist skills and the complexities are generally beyond the scope of the average person. Experience – Experience is more than knowing what needs to be done and when to do it. It's knowing the pitfalls, recognising potential problems and taking necessary steps to ensure the estate is administered efficiently without unnecessary cost and delay. Availability – An Executor must be available to take up the Executorship and be able to dedicate the time required to administer the estate diligently. Impartiality – An Executor must not take sides or be influenced to favour one beneficiary over another. This can become difficult if a dispute arises between the beneficiaries, especially if the Executor is a relative or friend.

		If I specify my funeral arrangements in my Will, will my Executor be responsible for making sure they are carried out?
		The sooner your Executor is advised of your death, the sooner he/she will be able to access your Will and advise your next-of-kin of your funeral requirements as specified in your Will. If you make specific requests in your Will regarding you funeral arrangements, it is advisable to also let those people who are likely to take responsibility for arranging you funeral, know of your wishes.

EPAs

Estate administration

Estate administration

		My brother has appointed me the Executor of his Will. How difficult will it be for me to wind up his estate?
		At Guardian Trust we are often approached in cases where a relative or friend is appointed Executor of an estate and isn't sure how to go about it. The degree of complexity of the estate administration process will largely be determined by the nature of the assets that make up the estate, the type and amount of debt that must be settled and of course, whether there will be any contentious claims or actions against the estate. Other factors which will determine how 'difficult' the estate will be for you to administer are the extent of your knowledge of estate administration and the time you have available to attend to the details of the process. Guardian Trust can act as an agent for you or as the Executor, in performing all the administrative duties and assist and advise you and the beneficiaries as required.

		Recently, a family member passed away and there were a few surprises when her will was read. Some family members want to contest the Will. Can you explain the legal process and the approximate cost of doing this?
		The process and cost of contesting a Will depends on the grounds on which the Will is being contested. There are two situations where a Will can be contested or challenged. The first is a claim that challenges a Will’s validity – for example, that it wasn’t correctly signed or witnessed or there is doubt over the mental capacity of the person making the Will at the time the Will was made. These claims are dealt with by the High Court. The second situation is a claim that challenges the contents of a Will. A number of laws provide for this such as the Family Protection Act, the Law Reform (Testamentary Promises) Act and the Property (Relationships) Act. The Family Court usually settles these claims although they may be referred to the High Court if the estate is of particularly high value or there are complex issues to be determined. If you decide to contest the Will in court, regardless of the claim, you will need to consult a lawyer. Depending on the lawyer's expertise, the hourly rate charged can vary between $200-$400 an hour. The complexity of the claim and the Will, will determine how many hours the lawyer will require. Court costs are normally deducted from the estate of the deceased however, if the judge deems the claim to be unrealistic, these costs might be passed on to those who are contesting the Will. Other costs to bear in mind are the emotional costs when dealing with sensitive issues, such as Wills, and the long-term impact it will have on the family involved. We recommend considering mediation between the various parties, to see if the issue can be resolved. Although lawyers will still need to be involved to ensure decisions made through mediation are made legally effective, it will usually be less costly than pursuing the claim in court. If mediation is not successful, there is also the option of Arbitration. This is quicker and cheaper than going to court but the parties will have less control over the final decision which is binding when made by an arbitrator.

		How long does it take for an estate to be finalised?
		The length of time it will take to administer an estate will depend on: How quickly the Executor/administrator has all the necessary information at their disposal The nature and complexity of the assets and the liabilities Whether there are any disputes. The law relating to estate administration prescribes certain processes and these must be adhered to. This question cannot be answered in general terms and it would be best to ask the Trust Manager who is dealing with the estate administration for a time estimate.