Many people put off making a Will because they think they have plenty of time or that their family will know what they would have wanted.
But if you die without a valid Will, you do not get to decide how your estate is divided. The law determines who inherits from you and in what proportions.
For some families, this may be exactly what they would have wanted. For others, it can be very different from what they had intended.
What Happens If You Die Without a Will?
If you die without a valid Will, you are said to have died intestate.
Your estate is then distributed according to the rules of succession set out in Irish law.
For example:
- If you leave a spouse or civil partner but no children, your spouse or civil partner generally inherits the whole estate.
- If you leave a spouse or civil partner and children, your spouse or civil partner generally receives two-thirds and the remaining one-third is divided between your children.
- If you have children but no spouse or civil partner, your estate is generally divided equally between your children.
- If you have no spouse, civil partner or children, other relatives may inherit according to the rules of intestacy.
This means that dying without a Will can result in your estate being divided in a way you may not have chosen yourself.
A Will Gives You a Say in What Happens to Your Estate
A valid Will allows you to set out who you want to benefit from your estate.
You can leave money or property to family members, friends or charities, and you can leave particular assets to particular people.
There are, however, legal rights that can affect how freely you can distribute your estate. For example, a surviving spouse or civil partner has a legal right share even where there is a Will.
Where there are children, the legal right share of a surviving spouse or civil partner is one-third of the estate. Where there are no children, it is one-half.
This is why making a Will is not simply a matter of writing down who you would like to receive your property. Your family circumstances and the law also need to be considered.
What About an Unmarried Partner?
This is particularly important for couples who live together but are not married or in a civil partnership.
A cohabiting partner does not automatically have the same inheritance rights as a spouse or civil partner. In many circumstances, making a Will is therefore particularly important if you want your partner to inherit from your estate.
If you own your home together or have significant savings or other assets, it is worth getting advice on what would happen to those assets if either of you died.
Who Deals With Your Estate?
When you make a Will, you can appoint an executor to deal with your estate after your death.
The executor is responsible for dealing with the administration of the estate, including obtaining the appropriate Grant of Representation, gathering assets, dealing with debts and distributing the estate according to the Will and the law.
If there is no Will, there is no executor. An administrator will generally need to be appointed, usually from among the deceased person’s next of kin.
The duties of an executor and administrator are broadly similar, but the legal process for obtaining authority to deal with the estate is different.
Choosing an executor you trust can make the administration of your estate more straightforward for your family.
What If You Have Young Children?
If you have children, your Will can also form part of your plans for their care if you die.
A testamentary guardian can be appointed in a Will in appropriate circumstances. If there is another surviving guardian, the position is different and the appointment operates alongside the surviving guardian’s rights.
You can also make arrangements for how money or property left to young children should be managed.
This is worth discussing with your solicitor, particularly if both parents are concerned about what would happen to their children if they were no longer there to care for them.
Can Making a Will Reduce Inheritance Tax?
A Will does not automatically remove Capital Acquisitions Tax (CAT), but proper estate planning can help you understand the tax position and make use of any reliefs or exemptions that may apply.
The tax consequences depend on the assets involved, who receives them and the circumstances of the transfer.
If your estate includes a farm, business, property or substantial assets, it is particularly important to consider the tax position when planning your succession.
Your solicitor can advise on the legal aspects of your Will and work with your accountant or tax adviser where specialist tax advice is required.
Does Making a Will Save Time for Your Family?
A Will does not mean that probate will be immediate or that administering an estate will always be straightforward.
However, having a valid Will and a named executor provides a clear starting point for dealing with the estate.
Where there is no Will, an administrator generally has to be appointed and the estate must be dealt with under the rules of intestacy.
Having your wishes clearly recorded can also reduce uncertainty about who you intended to benefit.
Will or No Will?
The difference is ultimately about who makes the decisions about your estate.
With a valid Will, you can set out your wishes, appoint an executor and make arrangements for your family and beneficiaries, subject to the legal rights that apply.
Without a Will, the law determines how your estate is distributed and who deals with its administration.
There is no requirement for everyone to have a complicated Will. But if you own property, have children, have a partner, run a business or simply have particular wishes about what should happen to your assets, it is worth taking advice.
Making a Will in Carrick-on-Shannon
A Will should reflect your family circumstances, your assets and what you want to happen to them after your death.
Carol McCormack Solicitors can advise you on making a Will, succession planning and the legal issues that may affect how your estate is distributed.
If you are making a Will for the first time or your circumstances have changed since your existing Will was prepared, contact Carol McCormack Solicitors in Carrick-on-Shannon to discuss your requirements.
Also Read: Tax relief for farmers in Ireland