Making a Will is something many people put off. You may feel that you do not have enough assets to worry about, or that your family already knows what you would want.
But without a valid Will, you do not get to decide how your estate is distributed. The law determines who inherits from you, and this may not reflect what you would have chosen.
A Will can also deal with important matters such as who should administer your estate, who should look after your children and how certain assets should be passed on.
Here are 10 things to consider when making a Will in Ireland.
1. Why should you make a Will?
The main reason for making a Will is simple: it allows you to set out what you want to happen to your estate after your death.
If you die without a valid Will, your estate is distributed under the rules of intestacy. For example, where a person dies leaving a spouse or civil partner and children, the spouse or civil partner is generally entitled to two-thirds of the estate, with the remaining one-third divided between the children.
Where there is a spouse or civil partner but no children, the spouse or civil partner generally inherits the entire estate.
If you are not married or in a civil partnership, your position can be very different. A cohabiting partner does not automatically have the same inheritance rights as a spouse or civil partner.
A Will allows you to make your wishes clear, subject to the legal rights that may apply to certain family members.
2. Your spouse or civil partner has a legal right share
Making a Will does not mean that you can simply leave your entire estate to whoever you choose.
A surviving spouse or civil partner has a legal right share under Irish succession law.
Where there are no children, the legal right share is one-half of the estate. Where there are children, it is one-third.
This right applies even if the Will provides something different. A spouse or civil partner can, in certain circumstances, choose to take the gift left to them under the Will instead of their legal right to share.
This is one reason why it is important to discuss your family circumstances with your solicitor before deciding how your estate should be divided.
3. What rights do children have?
Children do not have an automatic fixed share of their parent’s estate where there is a valid Will.
However, a child who believes they have not been properly provided for may be able to make an application to the court under section 117 of the Succession Act 1965.
The court considers whether the parent failed in their moral duty to make proper provision for the child in accordance with their means.
This does not mean that every child who receives less than they expected can successfully challenge a Will. These applications are considered on their individual circumstances.
If you have concerns about how your children should be provided for, it is worth discussing them when making your Will rather than leaving the issue until later.
4. Who should be your executor?
Your executor is the person responsible for dealing with your estate after you die.
Their role can include applying for the Grant of Representation, identifying and gathering your assets, dealing with debts and expenses, and distributing the estate in accordance with your Will and the law.
Choosing an executor is therefore an important decision. You should choose someone you trust and who is likely to be able to deal with the practical and legal responsibilities involved.
You can appoint more than one executor. Before naming someone, it is sensible to ask whether they are willing to take on the responsibility.
5. Who will look after your children?
If you have children under 18, you should think about who you would want to care for them if you were to die.
Guardianship is a separate legal issue from inheritance, and the position can depend on the circumstances of the child’s parents.
Your solicitor can explain who currently has guardianship and whether you need to make arrangements in your Will or elsewhere.
If you are making a Will and have young children, this is an issue that should not be overlooked.
6. What happens to money or property left to children?
If you intend to leave assets to children who are under 18, you may need to consider how those assets will be managed.
A trust can be used in appropriate circumstances so that assets are managed on behalf of a child rather than passing directly to them while they are still a minor.
The choice of trustee is important because trustees may have responsibility for managing the assets and making decisions about their use in accordance with the terms of the trust.
If one of your children has additional needs or there are particular concerns about how an inheritance should be managed, tell your solicitor before the Will is drafted. The appropriate arrangement may require more detailed advice.
7. Make a list of your assets
You do not need to have a large estate to benefit from preparing a list of your assets.
Before meeting your solicitor, it can be useful to make a note of:
- Your home and any other property
- Mortgages and other debts secured against property
- Bank and savings accounts
- Shares and investments
- Pensions
- Agricultural land or other land
- Business interests
- Property or assets held outside Ireland
- Valuable personal possessions
You do not necessarily need to decide what happens to every individual possession before making your Will. The important thing is to give your solicitor a clear picture of your financial circumstances.
It is also sensible to keep important information about your assets somewhere secure and make sure your executors will know where to find it.
8. What should your Will actually say?
Your Will should clearly set out what you want to happen to your estate.
You may want everything to pass to one person, divide your estate equally between your children, leave particular assets to particular people, or make gifts to charities.
You should also consider what happens if one of your beneficiaries dies before you.
A properly drafted Will can deal with these situations and reduce uncertainty for your family.
If you own property abroad, have a business, have children from different relationships or have a more complicated family structure, tell your solicitor. These circumstances may require additional advice.
9. Your Will must meet certain legal requirements
A Will is not valid simply because it is written down and signed.
In general, a valid Will must be in writing, made by a person over 18 who has the required mental capacity, and signed or acknowledged by the person making the Will in the presence of two witnesses who are present at the same time. The witnesses must then sign the Will.
You should also be careful about who acts as a witness. A gift to a person who witnesses the Will, or to their spouse or civil partner, may be invalid.
These formal requirements are one reason why having a solicitor prepare and properly execute your Will can be important.
10. Remember to review your Will
Making a Will is not necessarily a once-in-a-lifetime task.
Your circumstances can change. You may marry, separate, have another child, lose a beneficiary, acquire property or change your financial circumstances.
Marriage or entering into a civil partnership can also affect an existing Will, subject to specific circumstances.
If your circumstances have changed significantly since your Will was made, it is worth having it reviewed.
What happens when you make a Will with a solicitor?
Your will and probate solicitor will normally discuss your family circumstances, assets and wishes before preparing the Will.
You should be prepared to provide details of your assets and explain who you would like to benefit. You can also discuss your choice of executors, guardians and trustees where relevant.
Once the Will has been prepared, your solicitor can explain its contents and arrange for it to be properly signed and witnessed.
The aim is not simply to have a document with your signature on it. Your Will should accurately reflect your wishes and be prepared and executed in a way that complies with Irish law.
Making a Will with a Solicitor in Carrick-on-Shannon
A properly prepared Will can make things clearer for your family and help ensure that your estate is dealt with according to your wishes, subject to the legal rights that apply.
If you are making a Will for the first time, or your circumstances have changed since your existing Will was prepared, Carol McCormack Solicitors in Carrick-on-Shannon can advise you on your options and help you put the necessary arrangements in place.
For advice on Wills, succession planning and estate matters in Carrick-on-Shannon and County Leitrim, contact Carol McCormack Solicitors.