It’s difficult to think about what would happen to your children once you’re no longer around or if your health declines significantly. However, it’s important to be prepared for this eventuality for the sake of your loved ones.
In this article, A’lanah Harrison walks us through the most important legal protections every parent should consider putting in place. A’lanah specialises in estate planning and believes putting these key legal measures in place for you and your loved ones shows you care and provides you with peace of mind.
A valid, up-to-date will
A will is a very important document for any adult to have in place, but even more so if you’re a parent.
It sets out your wishes regarding things like:
- Your assets and who you would like them to be distributed to
- Who you would like to appoint as the guardian of your children
- Whether you would like to appoint someone to look after your assets for your children’s benefit until they reach a certain age (minimum age being 18 years)
- Any preferences you have regarding your funeral
If you were to pass away without a will, any assets held solely in your name (such as KiwiSaver) would be divided according to the Administration Act 1969. If you left a spouse and children behind, this would mean that the first $155,000 of your estate, all your personal chattels (e.g. household chattels, vehicles and jewellery) and one-third of the balance of your estate would pass to your spouse. The remaining two-thirds of your estate would pass to your children, divided equally between them.
Note: if you’re separated but not yet divorced (i.e. your marriage hasn’t been formally dissolved by the Family Court), your ex still has legal rights to inherit your assets under the Administration Act. Therefore, if you’re in this position, it’s particularly important to ensure you have a will in place.
For some people, the default arrangement spelt out by the Administration Act might be perfectly acceptable – but it’s not suitable for everyone. Going through the estate administration process without a will is also more expensive and time-consuming for your loved ones, so it’s very worthwhile making a will.
By putting a will in place, you can set out exactly how you would like your assets to be distributed, which may be quite different to the arrangement prescribed by the Administration Act.
If you have any assets that are particularly special or meaningful to your children (like a piece of jewellery or a family heirloom), you can specify who should receive these. This can help to prevent disputes between your children about who should get what.
Making a will also means you can nominate a testamentary guardian for your children, which is important to do if they’re under the age of 18. Your children won’t necessarily live with the guardian you’ve chosen, but the appointed guardian will be legally responsible for making important decisions about their lives (e.g. where they live, their education and what medical treatment they receive). They will share this responsibility with any other guardians, such as a surviving parent.
On top of the practicalities, making a will also has emotional benefits for those you leave behind. When you’ve taken the time to create a will, your children will know that you’ve thought about them and put measures in place to ensure they’re looked after once you’re no longer around.
A family trust
A family trust isn’t necessary or right for every parent, but it can be very beneficial in certain circumstances.
For example, if you have a child with unique needs and requirements (such as a disability, learning difficulty or addiction), setting up a trust is generally a good idea.
A trust is useful in this type of situation because it allows for flexibility in terms of how assets are distributed after your death. If the assets you would like your children to benefit from are held in a trust, they can be managed by someone else (whoever you’ve appointed as the trustees) on a long-term basis.
This means your children can benefit from the assets once you’re gone, but they won’t have complete control over them – you can decide whether they have some control or no control over the assets, depending on what’s appropriate.
In other words, the trustees will be able to make money available to your children as needed (e.g. they can make payments direct to providers or pay medical bills) rather than outright distributing the money to them.
A trust is also worth considering if you have a blended family, as it can ensure that any assets you’ve brought into your new relationship can be protected for your children, and your partner can do likewise. You and your partner can also choose to set up a trust together, which could own certain assets for everyone’s benefit (e.g. the family home).
The suitability of a trust is going to depend on your individual situation (e.g. the age of your children, how long you’ve been in a relationship with your new partner or spouse and what kind of relationship your children have with your new partner or spouse). But in many instances, a trust will be beneficial for blended families.
A contracting out agreement
You may also want to consider putting a contracting out agreement (also known as a prenup) in place – particularly if you have a blended family.
This type of agreement makes it clear who has brought what into your relationship and how you would like your assets to be dealt with if you and your partner or spouse separate or when one of you dies.
Without a contracting out agreement, a will may not be enough to ensure that your assets make their way into your children’s hands. If you’re in a qualifying relationship, your partner or spouse can choose to either take what they’re entitled to under your will or take their entitlement under the Property (Relationships) Act 1976.
This means your partner or spouse could take a 50% share of any assets that are categorised as relationship property. This overrides any attempt by you to leave assets to your children in your will, which can be understandably distressing for your children. Making an agreement about the division of relationship property upfront can provide more certainty and less stress for your children.
Historically, trusts have been used to ‘remove’ assets from the pool of potential relationship property, but the effectiveness of trusts for this purpose has been eroded by recent legal developments. A trust can still be useful for relationship property purposes, but it should be used alongside a robust contracting out agreement.
Enduring powers of attorney
It’s important for every adult to have enduring powers of attorney (EPOAs) in place, regardless of whether or not you have children.
If you’re a parent, there’s even more reason for you to create EPOAs, as not having them can lead to a lot of stress for your children in certain circumstances (e.g. if you’re involved in an accident and become mentally or physically incapable of making important decisions about your own medical treatment).
By putting EPOAs in place, you can nominate someone to make decisions on your behalf and manage your affairs in relation to your property and your personal care and welfare. Unfortunately, spouses, partners or next of kin are not automatically entitled to do this for you if you are incapable.
An advance directive
Another document you may want to think about creating is an advance directive.
An advance directive is a signed, non-binding statement that outlines your wishes in relation to your medical treatment (e.g. whether you would like to be resuscitated or kept alive in certain circumstances).
This kind of document can be very helpful for your children, as well as your partner or spouse, if a difficult decision needs to be made about your medical care.
If you have younger children, an advance directive can help them accept whatever decisions are made concerning your care, because they’ll know this is what you truly wanted.
Or if you have adult children who’ve been appointed to make medical decisions on your behalf (under an enduring power of attorney for personal care and welfare), an advance directive can take a huge weight off their shoulders. It can relieve some of the guilt they might feel when they have to carry out their role, as you’ve already made the hard decisions for them and documented what you want.
We can assist you to create an advance directive, but we would generally suggest discussing it with your GP too. They will be able to clarify the types of situations you’d like the advance directive to cover, ensure you’re well-informed about your stated wishes and explain any medical terminology.
A final word
Whatever legal protections you decide to put in place, it’s a good idea to have an open, honest discussion with your children (appropriate to their age, of course) about the decisions you’ve made.
This will ensure they know what to expect once you pass away (or if you lose mental capacity due to an accident or illness), which can make the process much smoother for everyone involved.
It’s also helpful to keep all your files well organised and make sure your children know where your important documents are stored, who your lawyers are, how to contact your accountant and so on.
By having these types of conversations now, you can save your children a lot of stress and cost, both financial and emotional, in the future.
How we can help
If you’d like to speak with us about the best legal protections for your family, get in touch with our team on enquiries@armstrongmurray.co.nz or 09 489 9102.
This article is brief and general in nature. You should not treat it as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this post. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this post.
