Dying without a will — and the form your family will thank you for

‍‍ Two of the most important legal documents you can have are the two most people put off. A will decides who gets what after you die. An enduring power of attorney decides who can act for you while you are still alive but can no longer speak for yourself. Get either one wrong — or simply never sign them — and it is your family who pays, in money, delay and stress.

In a nutshell

•     Die without a will and a fixed legal formula, not your wishes, divides your estate.

•     A surviving partner does not automatically inherit everything if you have children.

•     The first NZ$155,000 plus interest goes to your partner; the rest is then split.

•     Without an enduring power of attorney, your family must apply to the Family Court.

•     Both documents are quick and inexpensive to put in place while you are well.

Two Acts do the heavy lifting. The Administration Act 1969 sets out who inherits when there is no will. The Protection of Personal and Property Rights Act 1988 (the PPPR Act) governs who can make decisions for you if you lose mental capacity. Neither leaves the choice to your family — unless you have already made that choice yourself, in advance and in writing.

Part one — dying without a will: what really happens

Many New Zealanders assume that if they die, everything simply passes to their husband, wife or partner. It usually does not. When you die without a valid will — “intestate” — the Administration Act 1969 applies a fixed formula based on who survives you. There is no room for what you would have wanted, or for what your family agrees would be fair.

A real example: Margaret and Bill

Margaret and Bill are a Hamilton couple in their sixties. Bill dies suddenly, without a will. Their home was in Bill’s sole name, worth NZ$900,000, and he had NZ$200,000 in savings. Bill also has two adult children from an earlier marriage. Margaret assumes the lot is hers. It is not. Because Bill left children, the intestacy formula gives Margaret his personal chattels (the car, the furniture and so on), the first NZ$155,000 plus interest, and one third of what is left. Bill’s two children share the other two thirds. On an estate of roughly NZ$1.1 million, that can leave Margaret co-owning her own home with her late husband’s children — and needing their cooperation to sell it or borrow against it.

Who inherits when there is no will

•     Partner but no children or parents: your partner inherits everything.

•     Partner and children: your partner takes the chattels, the first NZ$155,000 plus interest, and one third of the rest; the children share two thirds.

•     Partner and parents but no children: your partner takes the chattels, NZ$155,000 and two thirds; your parents take one third.

•     Children but no partner: the children share everything equally.

•     A de facto partner usually qualifies only after three years together — a shorter relationship may inherit nothing under these rules.

•     Stepchildren you never legally adopted inherit nothing under intestacy.

What your family has to do

1.   Someone must apply to the High Court for letters of administration, because there is no will and no named executor.

2.   They must prove their relationship to you and obtain renunciations from anyone with equal or higher priority.

3.   Only then can the estate be gathered in and distributed — strictly by the formula, whatever anyone thinks is fair.

This is slower, more paperwork and more expensive than administering a simple will — and the result may be one nobody actually wanted.

Part two — the form that speaks for you while you are still here

A will only takes effect when you die. It does nothing if you are alive but, after a stroke, an accident or dementia, can no longer manage your own affairs. That is the job of an enduring power of attorney (EPA) under the PPPR Act 1988.

A real example: Raewyn and her son David

Raewyn, 72, has a serious stroke. Her son David needs to pay her rates, her insurance and her rest-home top-up from her accounts. The bank politely refuses to let him — he has no legal authority to touch her money. Because Raewyn never signed an EPA, David’s only route is to apply to the Family Court under the PPPR Act to be appointed her property manager. That means a medical certificate, a formal application, notice to family, a lawyer’s report and a wait of weeks or months — all while the bills pile up. An EPA signed while Raewyn was well would have avoided every step of it.

The cost most families don’t see coming

A court-appointed property manager does not have to be a family member. Where no suitable family member is available, or the family cannot agree, the Family Court can appoint a trustee corporation such as Public Trust. Unlike a family member — who generally acts without a fee — a professional manager charges ongoing management fees from your money, for as long as you lack capacity, which can be years.

There is a further cost that catches families out. Every court-appointed property manager, even a family member, must file annual accounts, and Public Trust examines those accounts on the Court’s behalf under the PPPR Act. That examination is charged at a regulated NZ$247.27 an hour (including GST), paid from the incapacitated person’s own assets, every year — and, since a change in October 2024, it can no longer be subsidised for smaller estates. None of this is Public Trust being greedy: the role is court-supervised and the rate is set by regulation. But it is a real, recurring bill your family avoids entirely if you have signed an EPA for property, because an attorney you appoint yourself is not put through the court-manager and examination regime at all.

The two enduring powers of attorney

•     EPA for property: covers your money, bills and property. You choose whether your attorney can act immediately or only once you lose capacity, and you can appoint more than one person.

•     EPA for personal care and welfare: covers your health, treatment and where you live. It comes into effect only once a doctor certifies you have lost capacity, and you may appoint just one attorney at a time (with a successor as backup).

Getting it right

1.   Use the prescribed PPPR forms — an EPA on the wrong form is not valid.

2.   Get independent legal advice; your signature must be witnessed by a lawyer, qualified legal executive or trustee-corporation officer who explains the effect.

3.   Name a successor attorney in case your first choice cannot act.

4.   Tell your bank, your doctor and your family, and store the signed EPA where it can be found.

The one thing most people get wrong

Your marriage certificate gives your partner no power over your money or your medical care if you lose capacity — and no larger share of your estate if you die without a will. Being someone’s spouse is not the same as being their attorney, or their sole heir. Only the documents make that so. This is the single most common, and most costly, misunderstanding we see.

What you can do — and where we can help

For most people a will and two EPAs are a single, affordable afternoon’s work that saves their family the two worst outcomes above. At Ross Holmes Lawyers we prepare wills and EPAs together, in plain English, in person or entirely online. We will talk through who should inherit, who should be your attorneys, and the “what if” backups most people forget. If you already have these documents but they are more than a few years old — or your relationships, children or property have changed — our estate planning team can review them. It also pairs naturally with an advance health care directive, which records your treatment wishes in your own words.

Learn more about protecting your family, your home and your legacy.

Questions clients actually ask

Does my partner automatically get everything if I die without a will?

No. If you have children, your partner takes your chattels, the first NZ$155,000 plus interest, and one third of the rest; the children share the other two thirds.

Do de facto partners inherit?

Usually only after three years together — and even then it can be harder to establish entitlement without a will.

Does a will cover me if I lose capacity?

No. A will only operates after death. For decisions while you are alive you need an enduring power of attorney.

Can my family just sort it out at the bank if I have a stroke?

No. Without an EPA the bank cannot let them act; they must apply to the Family Court, which is slower and more expensive.

Can I change my EPA later?

Yes. While you still have capacity you can change, replace or cancel your EPA in writing.

Useful links

Administration Act 1969 — the intestacy rules in full.

Protection of Personal and Property Rights Act 1988 — the law governing EPAs.

Ministry of Justice — enduring power of attorney — official guidance and forms.

Community Law — dying without a will — a plain-language explainer.

Ministry of Justice — apply for a property manager — what your family faces when there is no EPA.

One change to watch

New Zealand’s succession law is under review. The Law Commission has recommended replacing the Administration Act’s intestacy rules with modern legislation — including a proposed Inheritance (Claims Against Estates) Act — that would, among other things, do more to ensure a surviving partner is provided for. Nothing has changed yet, and until it does the current formula above applies. We will update this post if the law moves.

Talk to us about putting your will and enduring powers of attorney in place — get an online quote today.

Disclaimer. This article is general information only and is not legal advice. Your situation is unique; please obtain specific advice before acting.

About the author

Ross Holmes is the principal of Ross Holmes Lawyers (Ross Holmes Virtual Lawyers Limited), a virtual New Zealand law firm serving families and small businesses in property and conveyancing, estate planning, personal law, business law, seniors law and estates. Ross writes the trust administration chapters of LexisNexis’ Law of Trusts (New Zealand). Learn more at rossholmeslawyers.com or get in touch via the contact page.