- Why make a Will?
If you don’t make a Will and you have no children and have a spouse or a civil partner then your spouse or your civil partner gets all of your assets.
If you have a spouse or a civil partner and children and you don’t write a Will then in those circumstances the spouse/civil partner gets two thirds of your assets and one third of your assets is then divided equally between your children. (If a child has already died their children take a share).
- Legal Right Share of Spouse/Civil Partner
If you have a Will your spouse is still entitled to a legal right share. Even if you have a Will your surviving spouse/civil partner is entitled to take their legal right share of your estate which is as follows:
- If there are no children the legal right share is half of the estate.
- If there are children the legal right share is one third of the estate.
- Rights of children under a Will
Unlike a spouse or civil partner children have no absolute right to inherit from their parent’s estate. However, if your child considers that they have not been adequately provided for they may make an application to Court under Section 117 of the Succession Act. A child of any age can make such an application. The Court must decide if the parent has “failed in their moral duty to make proper provision for the child in accordance with their means”.
- Appointing an Executor. What is an executor?
In legal terms the executor’s job is to extract the Grant of Probate in the deceased’s person’s estate and to administer the deceased’s estate. In plain English that means that the executor gathers together a valuation of all of the assets belonging to the deceased together with a list of all their liabilities and debts which they owe and then the executor normally in conjunction with a solicitor uploads forms to the Probate office which consists of a list of all the assets and all liabilities of the deceased’s person. After a number of months when the Probate Office have examined all of the documents and they are satisfied with the documents they will issue a Grant of Probate. This is a one-page document which allows the executor to gather in all of the assets and to distribute them according to the terms of the Will. At that stage the executor or the solicitor will pay all the debts and expenses of the deceased’s person.
You can appoint one executor but it is wiser to appoint more than one in case a situation arises where one of the executors isn’t able to do their job for some reason. It is probably wise to ask an executor whether they are happy to act as the executor of a Will rather than “land” them in the job. If you appoint an executor who lives outside of Ireland it can be difficult to arrange for them to sign all the documents so from a practical point of view it is probably easier and wiser to appoint an executor within Ireland.
- Appointment of Guardians. What is a Guardian?
In normal circumstances if a person dies leaving the other parent surviving the other surviving parent is normally and usually automatically the Legal Guardian of the child. A guardian essentially steps into your shoes and has legally responsible for your child until they reach 18 years of age.
Married parents of a child are the joint Guardians of their child automatically. If for example a mother of a child is not married to the child’s father, she is the sole Guardian of the child unless the mother and father firmly declare in writing that they are both joint Guardians. If this doesn’t take place the father can apply to the Court to be made a joint guardian.
It is possible for an executor or a trustee of a Will to be appointed as a Guardian and obviously whoever you appoint needs to be suitable for that role.
- Appointment of Trustees. What is a Trustee?
If you have children under 18 years it is desirable that you create a trust in your Will so that the Trustees can manage the trust until such time as your minor children, come of age. The Trustees mind the assets on behalf of the children and the Trustees can use the trust fund to benefit the children until the child reaches an age of maturity where they can manage the money themselves.
If you have a child who may have a long-term disability a specific trust may need to be set up for that child and you need to advise us of this.
- List of Assets.
You should prepare a list of your assets to give to your solicitor and this list should could include the following: –
- Details of your property together with details of any mortgage and mortgage protection on those properties.
- Details of any foreign property.
- Details of any shares.
- Details of bank accounts.
- Details of Prize Bond or savings bonds.
- Details of agricultural property.
- Details of any business assets.
The solicitor then will hold those details on file with the Will and it can be used as a reference point.
- How do I actually arrange to get the Will written?
To draft a Will within our office will require at least two consultations: –
The first consultation goes through a full checklist with you as regards writing your Will. It is helpful if you have the names of your Executors, Guardians and Trustees for that consultation together with a list of your assets. We will then draft up the Will and you will then come back for a second consultation where we will go through the Will with you and ensure that you are satisfied with it and then at that stage, we can arrange for you to sign it.
- What makes a Will an actual legal document?
There is a set format that must be followed to make a Will a valid document. There are particular clauses which need to be used in every Will and all Wills must be dated. Every Will must be signed by the person making the Will in the presence of two other independent people who must witness your signature when you sign your Will. An individual who is inheriting under the Will may not witness your signature.
- What should my Will deal with?
Apart from naming you Executors your Guardians and your Trustees, the Will should deal with how you want your assets divided on your death. You may just want it simply divided between all your children in equal shares or alternatively you may wish to leave specific assets to specific people or assets to a charity. You should come to the consultation with a list as to how you would like your assets distributed on your death. Our office will then draft up the relevant clauses to carry out your wishes so that they are reflected it in your Will.
You may need specialised tax advice and if that is the case, we will advise you of that at your consultation. In general terms children can inherit up to €320,000 tax free from a parent. Brothers, sisters, nephews, nieces, and grandchildren can inherit €32,500 tax free and strangers in blood can inherit €16,250 tax free.
The contents of these pages are provided as an information guide only. While every effort is made in preparing material for publication no responsibility is accepted by or on behalf of McCormack Solicitors for any errors, omissions or misleading statements on these pages or any site to which these pages connect.