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Property Law

Estate and Succession Planning

How do you make sure all of your assets will pass to your children when you die?  How do you protect your assets from claims from other parties?  These are common questions people have when considering their Estate.  

It is important for people to review their Estate and Will over time to ensure that not only are their wishes clear and concise but also the correct structures are in place to ensure that assets are protected for their intended recipients. Re-marriage or re-partnering changes family structures and old Wills become outdated. Are your property affairs set up to ensure assets will pass as you intend?  We can work with your accountant to ensure these issues are addressed.  

Issues that need to be considered include the following:

Trusts

New Zealand, in all probability, has more Family Trusts per head of population than any other jurisdiction in the world. Forming a Family Trust to own assets has its advantages, but it is important you understand the implications of doing so. There is no such document as a standard Trust and you need to be aware of your rights and responsibilities as a Trustee. The Trust Deed must be prepared to reflect your personal circumstances and tailored to suit your wishes. We have significant experience in advising on the appropriateness of asset ownership by a Family Trust and the form the Trust Deed should take.

The law of Trusts is subject to a comprehensive review by the Law Commission.  As laws surrounding Trusts change, you should ensure you are aware how these law changes will affect your Trust.  These include the changes to gifting requirements, trustee liability and laws relating to beneficiaries.  

Wills

A Will sets out how the property that falls into your Estate is to be distributed on your death. Wills must be reviewed regularly to ensure they remain current because an outdated Will can create legal issues for those who survive you.  We have experience in drafting all types of Wills and can discuss with you different considerations for your own circumstances.

A Will is an important document and the original must be held and not tampered with.  Significant costs to an estate can occur if the original Will is lost, or the Will has been tampered with in any way (including removing staples!).  We hold all original Wills in Deeds for safekeeping.

For further information, refer to Wills

Power of Attorney

If you plan on being out of New Zealand for a period of time and you need someone back home to manage your affairs, you require a Power of Attorney.  This document puts trust in your attorney to manage your property affairs while you are absent.  We can draft and advise you on these documents.

It is a sad fact of life that as we age, our mental facilities diminish.  Some of us will be lucky and hold onto these for a long time.  For others, it is important that enduring powers of attorney are granted before capacity is lost.

For further information, refer to General Legal Affairs especially for powers of attorney which apply in the event of diminished mental capacity. 

Estate Administration

When your loved one has passed away, estate administration is not necessarily at the forefront of people‚Äôs mind.  

Obtaining Probate of a Will or Letters of Administration is often required before an Estate can be administered and distributed.

If you have been appointed an Executor of a Will and there is property to administer, you must apply for Probate of the Will.  We can make the application for Probate for you. 

If someone passes away without a Will, there are strict requirements to comply with to obtain Letters of Administration.  Call us to discuss who can apply for Letters of Administration and what is required.

Probate

If the deceased has made a valid Will, then usually Probate of the Will is required to confirm the appointment of the Executor and Trustee so the Estate can be administered and distributed.  The Executor and Trustee effectively stands in the shoes of the deceased and has the power to sell and distribute property as provided for in the Will. 

Letters of Administration

If a person has passed away without a Will, a Court Order needs to be sought for Letters of Administration to assist with the administration and distribution of the deceased's Estate.  The Administration Act 1969 and High Court Rules provide who is entitled to apply for administration of the Estate and who has entitlements to the assets of the deceased's Estate. 

Estate Administration

Once Probate or Letters of Administration has been granted the Estate needs to be dealt with and distributed.  Often an Executor and Trustee will require legal advice to assist with the administration of the Estate. Whether large or small Estates, we are experienced in providing such advice and working with accountants to address estate tax returns.

For information as to issues and claims that can arise with Estates, see Estate Issues.