No one likes to think about what will happen when they die. However, it is important for you to make a Will because if you do not, and die without a Will, the law on intestacy decides what happens to your property. A Will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses and children. Refer to our Why make a Will section for more details.
Whilst preparing a Will is easy to put off, making a Will ensures your family avoid unnecessary legal and financial problems at what will be an already difficult time.
There are many things to consider when writing a Will and whilst it is possible to write your own Will it isn't usually advisable as it is easy to make a small mistake that would result in the Will being invalid. It is best to enlist the help of a specialist when preparing your Will as there are certain legal formalities that must be followed to ensure the Will is legally valid. Seeking expert advice can also help you minimise the portion of your estate that is paid as inheritance tax on your death. See Writing a Will for more details.
You will typically have to update your Will after every major life event such as marriage, divorce, the birth of a child or a major change in your financial circumstances. Failure to do so can result in your Will being invalidated. For further information on keeping your Will up to date when your circumstances change please read our page on Changing a Will.
Dying without a Will can lead to many problems. If you die leaving no valid Will your estate will be divided in accordance with the Laws of Intestacy which can result in complications as the laws do not account well for modern personal and family situations. These laws can have particularly disastrous consequences for unmarried partners, especially when there are children involved. Intestacy laws also stipulate that if you have no relatives your estate will pass directly to the State. Making a Will enables you to decide these things and other important matters such as your funeral arrangements or who will look after your much loved pet. This can give you peace of mind as to what will happen after you die.
It is not obligatory by law to prepare a Will for yourself and it is an easy task to put off. However, many problems can arise if you die without leaving a valid Will.
If you do not have a Will the government will decide who inherits your possessions, property and money. Who inherits your estate will be decided by the Law of Intestacy and as you can imagine they are unlikely to divide your assets in the way you would choose. Under the Law of Intestacy if you are unmarried and have no close relatives your Estate will automatically pass to the State (government) if there is no valid Will in place.
By making a Will you can decide exactly who gets which assets and how much. This could be almost anything from personal belongings to pets or property. You will also help avoid unnecessary arguments amongst family members or relatives that often arise when a deceased person wishes are not made clear.
Inheritance tax is the tax you pay on your estate. In simple terms this is everything that you own at the time of your death, once you have taken away anything that you owe.
Writing a Will allows you to greatly reduce the amount of inheritance tax you pay or even eliminate it altogether. Certain things can be given to particular people and organisations without inheritance tax being charged on them. This then allows you to provide more money for the people you want to receive it rather than paying it to the taxman.
If you have children who are below the legal age to live alone, preparing a Will is especially important. In your Will you can appoint specific guardians to care for your children in the event of your death. If you fail to do so the authorities will do so on your behalf, in the way they see fit. Often they do not choose the people you would have personally chosen to care for your children. This can be distressing for the children, as well as other family members, at a particularly difficult time. In some situations this means that a partner (who you are not married to) is not granted guardianship, even though they are the natural father.
It is a good idea to set up a trust for your children?s inheritance as it allows you some control over your money once you pass away. It is possible for you to lay down certain terms to help protect assets from youthful irresponsibility.
This is particularly useful when making long term financial provisions for handicapped children.
Included in your Will can be a legacy you wish to leave to particular organisations or charities. This could be a specific amount of money or even a valuable item, for example a piece of jewellery. Alternatively you could leave a contingent bequest. This is the legal term for a gift left in your Will that depends upon the occurrence of an event which may or may not happen. Please note that any legacy you leave will be free from tax.
By making a Will the desired recipients of your assets gain access to them far more quickly than if there is no Will in place. This means that they can use any money you have set aside for funeral costs or inheritance you have left them to pay for the arrangements, without having to use their own money.
Within your Will you can make known your wishes. For example, whether you want to be buried or cremated, where you want the funeral to take place, and any specific hymns or readings you would like included.
By not preparing a Will you invariably will cause difficulties for those you leave behind, at a time which is already distressing.
- Firstly your next of kin may be unsure as to whether or not you have prepared a Will. This means that they will probably have to spend time and money on searching for one.
- Once sure that no Will had been made they would probably go through the courts in an attempt to gain the power to deal with your estate. If a Will had been prepared this would be unnecessary as they would simply apply for probate, a process that is far quicker and easier to complete.
- As well as this, due to the delay in gaining access to your assets, your next of kin would have to pay for funeral expenses. There is also the possibility that they would have to pay inheritance tax before receiving any of your assets, a problem which often leads to financial hardship and even debt.
- If you have children and their mother is not alive, unless you have appointed guardians, your next of kin would need to deal with this too. This is also dealt with through the court which is costly and time consuming.
- When your next of kin reaches the point where they had access to your estate, they would have to distribute according to the Laws of Intestacy.
Although it is possible to write your own Will, it is generally not advisable as there are various legal formalities that must be followed to make sure that the Will is valid. Without an expert's help there is a risk that you could make a mistake, which could cause problems for your family and friends after your death.
In certain circumstances it is particularly advisable to seek legal advice. These include:
- If you have joint ownership of property with someone who is not your husband, wife or civil partner.
- You own a business.
- You have several family members who could make a claim on your estate because they are financially dependant on you.
- If your permanent home is not in Ireland.
- If you are not an irish citizen.
- If you are resident here but also own assets overseas.
If you do choose to write your own Will you should still have it checked by a solicitor to ensure that you haven't overlooked anything.
- Who do you want to leave your assets to when you die?
- How do you want to divide your property between your loved ones, friends or favourite charities?
- Are there any conditions you want to attach to these gifts such as your children / grandchildren having to reach a certain age before they inherit their share of your estate?
- Do you wish to leave a discretionary trust? A discretionary trust means that the trustees have discretion as to when the capital is handed over.
- Do you wish to leave a protective trust? A protective trust is designed to protect a beneficiary from themselves. You can insert a clause to disqualify someone from eventually inheriting if they sell their interest or become bankrupt.
- Do you have any particular wishes for your funeral?
- Do you want to be buried or cremated?
You must also name the people you wish to appoint as 'executors' of your Will. Executors are the people who will be responsible for carrying out your wishes and for sorting out your estate when you die. They will need to collect together all the assets of the estate, deal with all the paperwork and pay any debts, taxes, funeral expenses and administration costs out of money in the estate. They will then be responsible for transferring any legacies to the beneficiaries stated in your Will.
It is important to choose the people you appoint as executors with considerable care since their job involves a great deal of work and responsibility. You should always approach anyone that you are thinking of appointing as an executor to see if they are willing to take on the responsibility. If someone is appointed who is not willing to be an executor, they have the right to refuse.
The people you could choose to act as executors could be friends, family members, or a professional such as your solicitor. Whilst you are allowed to appoint one executor it is always recommended that you appoint more than one in case one should pass away. A good combination would be a friend or family member and a professional. Ideally, you should choose someone who is familiar with financial matters.
Make sure your executors are happy to take on this duty as there are long-term responsibilities involved, particularly if you include a trust in your will. It is a good idea to ask someone younger than you are. If an executor dies, any other surviving executor/s can deal with the estate. If there are no surviving executors, legal advice should be sought.
In order for a Will to be legally valid, it must be:-
- Made in writing by a person who is at least 18 years old.
- Made voluntarily and without pressure from any other person.
- Made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who may inherit.
- Signed by the person making the Will in the presence of two witnesses.
- Signed by the two witnesses, in the presence of the person making the Will, after it has been signed. A witness or the married partner of a witness cannot benefit from a Will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the Will is still valid but the beneficiary will not be able to inherit under the Will. Refer to Signing and witnessing the Will
Although it will be legally valid even if it is not dated, it is advisable to ensure that the Will also includes the date on which it is signed. As soon as the Will is signed and witnessed, it is complete.
Once the Will has been drawn up it is not effective until it has been signed in the presence of two witnesses. There are several rules regarding this process which, if not followed correctly, will make your Will invalid. In order to make sure that the Will is signed and witnessed in the correct manner you should ensure that:
- Yourself and two adult witnesses are all present in the same room before any signing begins.
- You sign first followed by each witness.
- The witnesses are likely to be traceable if required when you die.
- The witness is not blind and is capable of understanding what they are doing.
- The witnesses are not beneficiaries or the executors of the will or the spouse or civil partner of any beneficiary or executor.
- Each witness signs with his usual signature and follows it by his printed name and his address and occupation.
- No one leaves the room before the signing is complete.
Once your Will has been made, it should be kept in a safe place. You can keep your Will at home, with a solicitor, at a bank, or at any Will storage facility.
If you do decide to keep the original Will yourself you will need to tell someone you trust where you have put it, so it can be found when you die. This is very important, because if the original, signed Will is not found, your estate would normally be treated as if you had died intestate and your assets might not be distributed as you would have wished.
It is important to review your Will when a major life event occurs such as a marriage, a divorce, a separation, the birth of a child, the death of a relative or a change in your financial situation. These events may not only have an impact on the wishes you have for the division of your estate but will often have an effect on the validity of your current Will.
When you marry, any Will that you may have made previously is automatically revoked. The only exception to this is if the previous Will contains explicit instructions that a marriage is about to be entered into and it is made clear that you intend for the Will to remain valid after marriage.
If you get divorced your Will does not become invalid. What will happen is that any gift made in your Will to your former spouse takes effect as if they had died on the date your divorce was completed. This usually means the gift falls back into residue for the benefit of the residuary beneficiaries. If your Will left everything to your spouse, then it will be as if you died intestate (leaving no valid Will). Also if in your Will you had appointed your spouse as an executor or trustee, the will still takes effect as if they had died on the date the decree became absolute. For these reasons it is always best to make a new Will as soon as possible after your divorce.
If you have a child after having written your Will, they may not automatically become a beneficiary even if you have named your other children as beneficiaries. Therefore in order to ensure that your wishes are carried out, you should update your Will when events such as these occur.
For a Will to remain legally valid, any changes must not be done by amending the original Will after it has been signed and witnessed. Any alterations made to the original Will are assumed to have been made at a later date and so do not form part of the original legally valid Will.
The only way a last will and testament can be legally changed is by:
- making a codicil to the existing Will
- making an entirely new Will
A codicil is a supplement to an existing Will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change a guardian or executor named in a Will, or to add another beneficiary.
A codicil must be signed by the person who originally made the Will. It must also be witnessed; however the witnesses do not have to be the same as for the original will. There is no limit on how many codicils can be added to a Will, but they should only be used for very simple and straightforward changes. If a more complex change is needed it is best to make a completely new Will.
If you need to make major changes to a Will, it is best to make a new one. The new Will will begin with a clause stating that it revokes all previous Wills and codicils. The old Will should always be destroyed to avoid any confusion.
If you have made a Will and for any reasons you wish to change it then it is important that all previous Wills are destroyed so that when the time comes there will be no confusion as to which Will is the legally valid one.
Whilst it is sometimes easy to forget to destroy an old Will it is important that you remember as failure to do so can lead to problems after you or a loved one has gone. This is especially the case if certain provisions have been made in a previous Will which have since been changed in a newer one. For this reason the disposal of all old Wills is vitally important.
If you have had your solicitor draw up a Will on your behalf then they are likely to be in possession of a copy of it. If this is the case then you should speak to them regarding the destruction of the previous Will. Your solicitor will normally ask if you wish for them to destroy it or if you wish to do it yourself. Whilst this is your own decision it is sometimes best to collect all of the copies of your Wills and then destroy them yourself to make sure there will be no confusion over old copies when you have gone.
To destroy a Will, you must burn it, tear it up or destroy it in a way that makes it obvious that its destruction was not unintentional. There is a risk that if a copy subsequently reappears or pieces of the Will are reassembled, it might be considered that the destruction was accidental. If it is proven that a Will has been accidentally destroyed, it could be considered legally valid.
Once the old Will is destroyed, the new Will should contain a clause revoking all previous wills and codicils. Revoking a Will means that the Will is no longer valid in law.
A person who dies without a Will is said to have died 'intestate'. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a Will or when their Will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.
The legal rules of intestacy apply:
- When you have not made a Will
- When the Will has been denied probate because it has not been made properly or a challenge to it has been successful
- When the Will does not completely deal with all your possessions.
In these cases, after debts and expenses have been deducted, the estate is distributed in the following way.
If you are survived by:
- A spouse but no children (or grandchildren): your spouse gets the entire estate.
- A spouse and children: your spouse gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
- Children, but no spouse: your estate is divided equally among your children (or their children).
- Parents, but no spouse or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
- Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
- Nieces and nephews only: your estate is divided equally among those surviving.
- Other relatives only: your estate is divided equally between the nearest equal relationship.
- No relatives: your estate goes to the state.
In general, you are free to dispose of your belongings or estate as you wish, but your Will is subject to certain rights of spouses and other more limited rights of children. These rights are set out below.
If you have left a Will, and your spouse has never renounced or given up his/her rights to your estate, and is not "unworthy to succeed" in legal terms, then that spouse is entitled to what is called a "legal right share" of your estate. This legal right share is one-half of your estate if you do not have children and one-third if you do. Your spouse does not have to go to court to get this share, as any executor is obliged to grant this share where applicable. You can also make a bequest in your Will that increases your spouse's legal right share, although if you do not specify that this gift is meant to be in addition to his/her legal right share, the executor may consider it part of that share and not an extra element to it. Your spouse can choose to take either the assets specified under the Will or his/her legal right share. The executors must inform your spouse in writing of his or her right to choose between these two options and your spouse must exercise this right within 6 months of receipt of notification or within 12 months of the taking out of the Grant of Representation.
It is possible for a spouse to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage, for example, in the case of a second marriage, or the spouse may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse did not understand what he/she was doing or did not have independent legal advice.
If a couple is separated, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce, however, automatically ends succession rights.
Unmarried partners have no automatic legal right to each other's estates, although partners can make Wills that favour each other. These Wills, however, cannot cancel out the legal rights of a spouse if someone is separated but not divorced.
Being judged "unworthy to succeed" is relatively rare, and would arise, for example, if the surviving spouse had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse had deserted the deceased for at least two years before death.
Unlike a spouse, children do not have any absolute right to inherit their parent's estate if the parent has made a Will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.
However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate.
To talk to one of our solicitors about drafting a Will contact LawPlus Home or alternatively view our Home Law fixed fee service for further details.